Sigmon v. Mundy
| Decision Date | 11 May 1943 |
| Docket Number | 9440. |
| Citation | 25 S.E.2d 636,125 W.Va. 591 |
| Parties | SIGMON v. MUNDY et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
That the Supreme Court of Appeals might doubt correctness of jury finding is not sufficient to warrant court in disturbing verdict of jury if there is substantial evidence to support it. Where all material evidence comes from persons interested in the litigation and testimony of certain witnesses is questioned on ground of interest, the rule should be applied to witnesses for both plaintiffs and defendants. Jury's finding on conflicting evidence that a taxicab swerved back and forth across highway causing automobile following taxicab to swerve to the left, where it collided with an oncoming truck in which plaintiff's decedent was riding, resulting in injuries causing her death, justified verdict against owner and driver of taxicab, where such finding was supported by substantial evidence. Code 1931, 17-8-18, as amended by Acts 1931, c. 59.
The mere fact that an automobile skidded on slippery black-top road was not evidence of "negligence". Code 1931 17-8-18, as amended by Acts 1931, c. 59.
Condition of highway, failure to take that condition into account speed of vehicle, and the use of brakes, are matters which can be taken into consideration in determining whether skidding was caused by some negligent act of automobile driver. Code 1931, 17-8-18, as amended by Acts 1931, c 59.
Automobile driver was charged with knowledge of rain and wet condition of highway and that the highway, being of black-top construction, would probably be slippery after rain. Code 1931, 17-8-18, as amended by Acts 1931, c. 59.
That taxicab was mechanically limited to 37 miles per hour did not establish that finding of negligence against driver of taxicab, which skidded on wet black-top highway causing collision between defendant's automobile and truck in which plaintiff's decedent was riding, was not supported by the evidence because of testimony that cab was traveling from 40 to 45 miles an hour, where the speed, even if less than 37 miles per hour, was great enough to cause the cab to skid. Code 1931, 17-8-18, as amended by Acts 1931, c 59.
Motorist must exercise unusual care to keep automobile under control on a slippery street or road, so as not to cause injury by skidding, particularly where automobile is being driven on a grade or curve or at an intersection, or proceeding at a considerable speed. Code 1931, 17-8-18, as amended by Acts 1931, c. 59.
Whether the skidding of an automobile was the result of operator's negligence is generally a question for the jury. Code 1931, 17-8-18, as amended by Acts 1931, c. 59.
Evidence was sufficient to support finding that skidding of a taxicab resulting in collision between defendant's automobile and truck in which plaintiff's decedent was riding was occasioned by the careless operation of the taxicab, either through excessive speed, inattention to the road, or improper use of brakes. Code 1931, 17-8-18, as amended by Acts 1931, c. 59.
Where two defendants were negligent, and that negligence was concurrent, and the negligence of both proximately caused or contributed to the accident, both were liable notwithstanding any degree of negligence as between them. In action to recover for death of plaintiff's decedent who was riding in a truck which collided with defendant's automobile when defendant was caused to turn to the left to avoid skidding taxicab which preceded him, and taxicab driver was negligent in failing to operate his cab in a careful manner, and defendant was negligent in not keeping his automobile at a safe distance to the rear of taxicab, negligence of each was so connected as to make it impossible to say which of the two drivers was most at fault, and theory of joint liability for acts of concurrent negligence was applicable. Code 1931, 17-8-18, as amended by Acts 1931, c. 59.
In automobile accident case, question propounded by plaintiff's counsel did not suggest that defendants, or any of them, were protected by insurance. In automobile accident case, remarks of counsel, although having no bearing on case and therefore unfortunate, did not have any prejudicial effect.
1. The question whether the negligence of two or more persons was concurrent and, taken together, proximately caused or contributed to the injury of another is, as to all questions of fact, one for jury determination, and, in such case, a jury verdict thereon will not be disturbed where there is substantial evidence to support it.
2. Where two or more persons are guilty of negligence, which in point of time and place concur, and together proximately cause or contribute to the injury of another, they are guilty of concurrent negligence for which, in an action by the injured party or, in case death results therefrom, by his personal representative, recovery against them may be had.
Steptoe & Johnson, Stanley C. Morris, and Robert W. Lawson, Jr., all of Charleston, for plaintiffs in error.
A. P. Hudson and B. J. Pettigrew, both of Charleston, for defendant in error.
Rummel, Blagg & Stone, of Charleston, for J. S. Reynolds, amicus curiae.
On November 21, 1941, plaintiff's decedent, Stella Sigmon lost her life in an automobile accident, at a point known as Droddy's Service Station, on the Elk River road, about five miles north of Charleston. The decedent was riding in a truck operated by her brother, Ira Sigmon, and was also accompanied in the truck by her sister, Biddie Sigmon. The truck was being driven in the direction of Charleston and was struck by an automobile travelling in the opposite direction and operated by J. S. Reynolds. The truck was almost demolished, the automobile badly damaged, and plaintiff's decedent suffered injuries from which she died a few hours later.
While the collision was between the truck and the Reynolds automobile, it is claimed that it resulted, at least in part, from the negligence of Earl Walker, the driver of a taxicab owned by Roy W. Mundy and H. Earl Mundy, partners doing business as Town Tops Taxi Company. The taxicab was being driven in front of and in the same direction as the Reynolds automobile, and, it is claimed, skidded on the road between the Sigmon truck and the Reynolds automobile, and in so doing travelled from one side of the highway to the other, but, immediately before the accident, passed from the left side of the road to the right side in the direction it was going, barely missing the truck, and passing in front of the oncoming Reynolds automobile, forcing Reynolds either to collide with the taxicab or to turn to the left. Reynolds turned to the left and crashed into the Sigmon truck. Plaintiff below instituted this action against the two Mundys, Walker and Reynolds, alleging concurrent negligence, proximately contributing to the accident, on the part of all of the defendants. A trial was had resulting in a jury verdict in favor of the plaintiffs, against all of the defendants, in the sum of $7,500. The Mundys and Walker jointly moved the court to set aside the verdict as to them, which motion the court overruled, and to which action an exception was taken at the time. Reynolds also made the same motion, which was likewise overruled, and an exception taken. The trial court then entered judgment against all of the defendants on the verdict. Judgment as to Reynolds has become final, and the case comes to us on writ of error prosecuted by Roy W. Mundy and H. Earl Mundy, partners doing business as Town Tops Taxi Company, and Earl Walker.
In order to clear the atmosphere, and reach the real questions here involved, it should be stated that two facts stand out in bold relief: (1) The negligence of Reynolds proximately contributing to the accident; and (2) lack of any character of negligence on the part of the decedent, or in the operation of the truck in which she was travelling. The right of recovery by plaintiff against Reynolds is clear. The manner in which he operated his automobile, independent of the manner in which Walker operated the taxicab, removes all doubt on that point. This being true, two questions bearing upon the liability of the driver and owners of the taxicab are before us: (1) Was the taxicab operated negligently, and did such negligence cause or proximately contribute to the injuries which resulted in the death of plaintiff's decedent; and (2) was the negligence of Reynolds the sole proximate cause of the accident, even though the driver of the taxicab may, in fact, have operated the same negligently? In other words, did the negligence of Reynolds intervene between the negligence of Walker and the collision in such a way as to relieve the driver and owners of the taxicab from the consequences of what may have been their original negligence?
The answer to these questions depends mainly upon a consideration of factual matters, such as ordinarily require submission to a jury. These questions of fact were submitted to the jury and, in effect, a finding against plaintiffs in error was made on both points. Primarily, the question we have to decide is not whether the jury made a correct finding on the facts, but whether the evidence considered by it was of such a character as to warrant the finding it made thereon. That we may doubt the correctness of the jury finding (and as to this we express no opinion) is not sufficient to warrant us in disturbing its verdict if there was substantial evidence to support it. We do not deem it necessary to cite authorities on this point.
Coming to the evidence considered by the jury, it is not amiss to note that all of the material evidence comes from persons interested in the result of this litigation. This comment is not intended to...
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