Shields v. Church Bros., Inc., 13097
| Decision Date | 12 December 1972 |
| Docket Number | No. 13097,13097 |
| Citation | 193 S.E.2d 151,156 W.Va. 312 |
| Court | West Virginia Supreme Court |
| Parties | Carlton SHIELDS v. CHURCH BROTHERS, INC., a corporation. |
Syllabus by the Court
1. 'When the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for jury determination.' Syllabus, Villers v. McClung, 153 W.Va. 449 (169 S.E.2d 753).
2. 'In an action for damages for personal injury allegedly due to the negligence of the defendant, a verdict of the jury in favor of the plaintiff for a Nominal amount will not be set aside on the ground of inadequacy where the evidence is such that if a verdict has been returned for the defendant the trial court could not have disturbed the verdict, inasmuch as such verdict must be considered as a finding for the defendant perversely expressed.' Point 1 Syllabus, Coakley v. Marple, 152 W.Va. 68 (159 S.E.2d 378).
3. 'Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages.' Point 4 Syllabus, Richmond v. Campbell, 148 W.Va. 595 (136 S.E.2d 877).
Hudgins, Coulling & Brewster, Harold D. Brewster, Jr., Bluefield, D. Grove Moler, Mullens, for appellant.
Harry G. Camper, Camper & Watson, Welch, James C. Lyons, Pineville, for appellee.
This case is before the Court upon an appeal to the judgment of the Circuit Court of Wyoming County in an action instituted by Carlton Shields, as the plaintiff, against Church Brothers, Inc., a corporation, as the defendant, to recover for personal injuries sustained by the plaintiff when a bulldozer, operated by an employee of the defendant, struck a log which caught on a stump, causing the log to 'whip' and strike the plaintiff on the right leg, fracturing the tibia and fibula of the plaintiff's leg. The jury returned a verdict against the defendant and in favor of the plaintiff in the amount of $940.88 'to cover Wyoming General Hospital bill only'. Upon a motion for a new trial made by the plaintiff, the trial court set aside the jury verdict and granted the plaintiff a new trial on the sole issue of damages. It is from this order of the trial court that the defendant was granted an appeal.
The defendant assigns the following errors: (1) that the trial court should have directed a verdict for the defendant at the close of the plaintiff's evidence or at the conclusion of all the evidence upon the ground that the evidence established, as a matter of law, that the defendant was not guilty of any negligence which proximately caused the plaintiff's injuries; (2) that the trial court should have directed a verdict for the defendant at the close of the plaintiff's evidence or at the conclusion of all the evidence for the reason that the evidence disclosed that the plaintiff, as a matter of law, was guilty of contributory negligence which proximately contributed to the accident and his own injuries; (3) that the trial court should have affirmed the jury verdict as a verdict in favor of the defendant perversely expressed; and (4) that, in the alternative, the trial court should have granted a new trial on all issues and not solely on the issue of damages.
Carlton Shields, the plaintiff, was employed by Eastern Gas and Fuel Company to clear a parcel land, containing 5.89 acres, in order that the company might use the land as a tipple site. The tract of land was partially level bottom land and partially hillside. Under the terms of the oral agreement entered into by Eastern and the plaintiff, Shields was to cut the brush on the tract and burn it and cut the trees into prop timber and saw logs for use in the mine.
The plaintiff employed several men to use hand tools in clearing the land. Prior to the time of the accident the brush and trees had been cut and the brush and unusable timber had been burned. In order more quickly to clear the land of the logs which remained, the plaintiff rented a bulldozer with an operator from the defendant. The bulldozer operator, William Shiflett, was instructed by the defendant merely 'to move the dozer for Carlton Shields'.
On Saturday evening before the accident, the bulldozer was delivered by truck to the tipple site, but the work did not commence until the next morning. On that same evening, the plaintiff discussed with Shiflett where the logs were to be piled so that they could be picked up by trucks at a later time.
On Sunday morning, the day of the accident, the plaintiff and three of his employees met Shiflett at the tipple site. Shiflett drove the bulldozer to a place where some logs had been cut and proceeded to instruct two of Shields' employees how to hook the logs to the chain attached to the bulldozer. While the logs were being hooked to the bulldozer, the plaintiff walked down through the bottom to pick out the exact place where the logs were to be worked up into saw logs. When the plaintiff found the place where he wanted the logs to be piled, he waited there for Shiflett to finish hooking the logs and haul them through the bottom.
In the area where Shields was standing, there were several logs and poles scattered around. Shields, who testified that he had about ten years experience bulldozing and had been a timberman since 1961, gave the following account of the accident upon cross-examination:
'Q. You saw him coming down through the field approaching you with his blade down, didn't you?
A. Yes, sir, occasionally he would knock one out of the way, yes, sir.
Q. As he was coming through there with his blade down he was hitting logs and stumps and logs were lying there and he would hit them with his blade, and as the blade hit them they would come around so they would be lying parallel with the path in which you were traveling, isn't that right?
A. That's right.
Q. And you also know, based on your experience as a bulldozer operator, that it is possible when doing this type of work where there are logs and stumps, that if one of those logs would happen to catch as it is moving around, would happen to catch on a stump, it would get some whip action to it?
A. It is possible, yes.
Q. And there were some stumps and some logs in the area where you were standing, isn't that right?
A. Yes, sir.
Q. And you knew, based on your experience, that when you went through the area where you were standing that it was entirely possible he might hit a log and could whip around and hit you, is that right?
A. That is possible. That is why, after I showed him where the best place was for the logs, I turned around and started walking off.
Q. Mr. Shields, about how far were you from the dozer when you went by it?
A. I would say I was around twenty to twenty-five feet more or less.
Q. You were standing there, I believe--Didn't you say you were standing there and the dozer was coming toward you making this run?
A. I was standing there and watched them hook on the logs over there across the creek. I stood right there and watched him come through. He opened his road up the first trip he went across through the creek, and I was just more or less interested in how he was going to come back through there, and I just stood there and watched him as he came down through there, and he approached me to where he looked at me. I took my arm and pointed down like this, and he shook his head o.k. Well, I turned around and walked back. I was watching the boys skid some logs off of the steep place over there to the right and I maybe made a step or two, and the next thing I knew I was on the ground.'
Shiflett, the bulldozer operator, testified that, after hooking six or seven logs on the chain, he proceeded to drive the bulldozer some three or four hundred yards to the place the plaintiff had selected for the logs to be piled. According to Shiflett's testimony, he was proceeding as slowly as possible and would look back every once in a while and then look ahead. As he approached the site where the logs were to be piled, he had his blade down so that he could knock the logs out of the way and make a road.
Both the plaintiff and Shiflett testified that they thought Shields was a reasonably safe distance away from the bulldozer when the accident occurred. Both men were experienced bulldozer operators and were aware of the possibility that the bulldozer could strike a pole and cause it to 'whip out'. The plaintiff testified that, based on his own experience, it was possible for the bulldozer, as it went through the area where he was standing, to strike a log which would whip around and his him. At the time the bulldozer passed Shields, it was twenty or twenty-five feet away from him.
Shiflett testified that he did not see the pole which hit Shields and that a safer course of action would have been to make the road before any logs were hauled.
The plaintiff further testified as follows:
'Q. Mr. Shields, did you feel that you were standing a little too close to that dozer?
A. No, sir, I didn't feel I was standing too close to it.
Q. You felt you were a reasonably safe distance away?
A. I would have felt so.
Q. Then Bill Shiflett would have felt you were a safe distance away, wouldn't he?
A. It would be possible, yes.
Q. Then he wouldn't be thinking about raising his blade to miss a pole because he would have been a reasonable, safe distance away, isn't that right?
A. That could be possible too, but I am referring to the poles that might have been caught by the blade and swung around or something or maybe jumped when it was hit by the dozer.
Q. Of course, Mr. Shields, if Mr. Shiflett saw that he was hitting a pole and he saw this pole swing around to...
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