Shaw v. Perfetti
| Decision Date | 05 June 1962 |
| Docket Number | No. 12142,12142 |
| Citation | 147 W.Va. 87,125 S.E.2d 778 |
| Parties | David SHAW v. Sergio C. PERFETTI. Alfred SHAW, an Infant, etc. v. Sergio C. PERFETTI. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. The questions of negligence and contributory negligence are for jury determination when there is a conflict in the evidence with regard to how the accident occurred, or when there is no conflict in the evidence but reasonable men may draw different conclusions from such evidence.
2. 'When an action for the recovery of damages for personal injuries, involving conflicting testimony and circumstances upon the questions of negligence and contributory negligence, has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence, or without any evidence to support it.' Pt. 2, syllabus, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410.
3. When a presumption is rebutted by uncontradicted evidence, the presumption disappears and it no longer remains in the case for jury consideration.
4. An infant plaintiff between the age of seven and eight years, who has been warned of the danger in crossing a heavily traveled highway and has sufficient intelligence to comprehend the danger, may be barred from recovery by his own negligence, if, notwithstanding such warning and comprehension of such danger, he is injured by suddenly running or walking from behind a passing vehicle into the side or path of an approaching vehicle operated by the defendant, and it is not error if an instruction to the jury in such case omits reference to the presumption that such an infant is presumed not to be guilty of contributory negligence when there is sufficient evidence in the case to rebut such presumption.
Schmidt, Laas, Schrader & Miller, Thomas B. Miller, McCamic & Tinker, Jeremy C. McCamic, Wheeling, for appellants.
Handlan, Garden, Matthews & Hess, John B. Garden, Lester C. Hess, Wheeling, for appellee.
These civil actions were instituted in the Circuit Court of Ohio County, West Virginia. One action is to recover damages for personal injuries suffered by Alfred Shaw, an infant, as a result of an accident in which an automobile owned and operated by Sergio C. Perfetti, the defendant in this case, was involved. The other action was instituted by David Shaw, the father of the infant plaintiff, in which he seeks to recover from the defendant damages for medical expenses as a result of the injuries suffered by his infant son on account of this accident. The two actions were consolidated and tried together before a jury which returned a verdict in favor of the defendant. The Circuit Court of Ohio County overruled the plaintiffs' motion for a new trial and entered a final judgment in favor of the defendant on August 25, 1961. A writ of error to this judgment was granted by this Court on November 13, 1961.
This accident occurred about 4 o'clock in the afternoon of September 25, 1959, near the infant plaintiff's home in the City of Wheeling, while he was attempting to cross U. S. Highway No. 40, a heavily traveled highway. The infant plaintiff was between the age of 7 and 8 years at the time of the accident. He was of above ordinary intelligence for a boy of his age and made good grades in his school work. He had been repeatedly warned by both his father and mother to be careful in crossing this heavily traveled national road. In fact, he had been warned on the day of the accident by his father, and only a few minutes before the accident by his mother. The evidence indicates that he had the capacity to understand the danger of crossing the highway, and did understand such danger. He knew that the highway at which place he crossed was used by many automobiles traveling in both directions. The road or highway was about 25 feet wide at the scene of the accident. The infant plaintiff had been accompanied by his mother to the curb on the east side of the highway a few minutes prior to the accident. She was sending him to a store to get some bread and aspirin and had warned him to be careful in crossing the highway.
Before the infant plaintiff started to cross the highway, a relative's child, whom his mother was keeping in her home, began crying and she ran up the steps and into her living room to attend to the child. It was at this time the accident occurred, and, upon hearing the screeching of tires, she immediately returned to the street or highway and the scene of the accident. The only eye witnesses to this accident were the infant plaintiff, the defendant, and his wife, who was riding in his car on the front seat with him. The infant plaintiff testified that he looked up and down the road before starting to cross and observed the defendant's automobile coming down the road in a southerly direction about 450 feet away. He stated that there were no other vehicles traveling in either direction on this arterial highway at the time, although the record discloses that following the accident vehicles were backed up on the highway as far as one could see.
The defendant and his wife testified that when he was driving his Volkswagen automobile down this highway there were automobiles in front of him in the direction he was driving and automobiles approaching from the opposite direction, that the infant plaintiff darted out from behind an approaching automobile which was traveling north in the east lane, and that they did not see the child until the front end of their automobile was about 2 feet past the front end of the approaching automobile and the infant plaintiff about 6 feet behind this approaching automobile, that he applied his brakes and swerved his car to the right of the west lane in which he was driving, and that the child, who was attempting to cross the highway diagonally with the back of his head toward him, continued to cross at an angle and ran into the left front of his car, and that he came to a complete stop about 5 to 7 feet from a stone wall on the right side of the highway; that just before the accident occurred they saw the child disappear from view.
The infant plaintiff stated that he did not know whether he was walking slowly or rapidly but that he was not running, and that he was walking with his back toward the automobile in question; that he felt like he was going in the air like an airplane.
After the accident the infant plaintiff was found lying on his stomach on the highway with his right leg under the left front wheel of the defendant's automobile. Skid marks measuring 36'5"' made by the tires of the defendant's automobile were found, and indicated that it had veered to the right. Brown scrape marks made by the infant plaintiff's shoes were found on the highway for a distance of 37'6"', which was 1'1"' longer than the distance of the skid marks made by the tires of defendant's automobile. There were no marks or brushed places found either on the left side or front of the defendant's car which would indicate where he had come in contact with the car at the of the accident.
It is difficult to ascertain from the evidence in this case how the infant plaintiff could have fallen when he came in contact with the automobile and then be found lying on his stomach, with his right leg under the left front wheel with skid marks from the tires over 36' and marks from his right shoe over 37' found. Although the stopping distance of the car indicated by the skid marks would be within the proper bounds for a car traveling 20 or 25 miles per hour, as claimed by the defendant, it would appear that the front wheel would have passed over the right leg of the infant plaintiff within the 36' and would not have been found resting on his leg.
Following the accident, the infant plaintiff, accompanied by his mother, was taken by ambulance to a hospital, where he remained for eight days, during which time casts were placed on his leg. He received severe and permanent injuries as a result of the accident and did not return to school until the middle of the following February in 1960.
Three assignments of error are relied upon by the plaintiffs for reversal of the trial court's judgment: (1) The court erred in giving the defendant's Instruction No. 9 over the objection of the plaintiffs, (2) the verdict of the jury is contrary to the law and evidence, (3) the court erred in overruling the motion of the plaintiffs to award them a new trial.
There is direct conflict in the evidence as to how this accident occurred. If the jury believed the evidence of the plaintiffs, that there was no vehicular traffic on this heavily traveled highway at the time of the accident, and that the defendant saw or should have seen the infant plaintiff on the sidewalk to his left, or the east side, 450 feet away, and saw him start to walk across the street, then a verdict should have been returned in favor of the plaintiffs. However, if the jury believed the defendant's version of the accident, that is, that the infant plaintiff came out from behind an approaching automobile and ran into the left side or immediately into the path of his automobile, then the defendant was entitled to a verdict. Slater v. Shirkey, 122 W.Va. 271, 8 S.E.2d 897. With the direct conflict as to how the accident happened being present in this case, as disclosed by the testimony and evidence of both the plaintiffs and the defendant, it is a clear case for jury determination. The jury having returned a verdict for the defendant, thus indicating that it believed the evidence introduced on his behalf, it is clearly not contrary to the law and evidence. Therefore, we find no merit to the second assignment of error. Davis v. Sargent et al., 138 W.Va. 861, 78 S.E.2d 217; Bower v. Brannon, 141 W.Va. 435, 90 S.E.2d 342; Meadows v. Stickler et al., 144 W.Va. 644, 110 S.E.2d 380.
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