Smith v. Cross, 34147.

CourtSupreme Court of West Virginia
Citation675 S.E.2d 898
Decision Date31 March 2009
Docket NumberNo. 34147.,34147.
PartiesMark E. SMITH, Defendant Below, Appellant v. Wesley CROSS, Plaintiff Below, Appellee.
675 S.E.2d 898
Mark E. SMITH, Defendant Below, Appellant
Wesley CROSS, Plaintiff Below, Appellee.
No. 34147.
Supreme Court of Appeals of West Virginia.
Submitted: January 28, 2009.
Decided: March 31, 2009.

[675 S.E.2d 899]

Syllabus by the Court

1. "When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge's decision to award

[675 S.E.2d 900]

a new trial is not subject to appellate review unless the trial judge abuses his or her discretion." Syllabus Point 3, in part, In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994).

2. "Where the trial court improperly sets aside a verdict of a jury, such verdict will be reinstated by this Court and judgment rendered thereon." Syllabus Point 4, Bronson v. Riffe, 148 W.Va. 362, 135 S.E.2d 244 (1964).

3. "The action of the trial court in setting aside a verdict and awarding a new trial will be reversed by this Court where it appears that the case, as a whole, was fairly tried and no error prejudicial to the losing party was committed during the trial." Syllabus Point 3, Neely v. Belk Inc., 222 W.Va. 560, 668 S.E.2d 189 (2008).

4. "`"`"`Questions of negligence ... present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.' Syl. Pt. 1, Ratlief v. Yokum, [167 W.Va. 779], 280 S.E.2d 584 (W.Va.1981), quoting syl. Pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964)." Syllabus Point 6, McAllister v. Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983).' Syl. Pt. 17, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990)." Syl. Pt. 1, Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991).' Syl. Pt. 2, in part, Johnson v. Mays, 191 W.Va. 628, 447 S.E.2d 563 (1994)." Syllabus Point 10, Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197 (2004).

5. "`"When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the evidence or without sufficient evidence to support it." Point 4, Syllabus, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894.' Syllabus Point 2, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963)." Syllabus Point 5, Toler v. Hager, 205 W.Va. 468, 519 S.E.2d 166 (1999).

6. "In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved." Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1984).

7. "`"It is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony is conflicting." Point 3, Syllabus, Long v. City of Weirton, [158] W.Va. [741], (1975) 214 S.E.2d 832.' Syllabus Point 2, Bourne v. Mooney, 163 W.Va. 144, 254 S.E.2d 819 (1979)." Syllabus Point 2, Toler v. Hager, 205 W.Va. 468, 519 S.E.2d 166 (1999).

8. "`In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Syllabus Point 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963)." Syllabus Point 6, Toler v. Hager, 205 W.Va. 468, 519 S.E.2d 166 (1999).

9. Syllabus Point 5 in Adkins v. Minton, 151 W.Va. 229, 151 S.E.2d 295 (1966), is expressly overruled because it is manifestly incompatible with the essential role of a jury in resolving conflicting evidence and credibility issues, and weighing the evidence presented.

Donna S. Quesenberry, Esq., Monica N. Haddad, Esq., MacCorkle, Lavender & Sweeney, PLLC, Charleston, WV, Morgantown, WV, for Appellant.

Frank Cuomo, Jr., Esq., Jason A. Cuomo, Esq., Cuomo & Cuomo, PLLC, Wellsburg, WV, for Appellee.

WORKMAN, Justice:1

This case is before this Court upon appeal of a final order of the Circuit Court of

675 S.E.2d 901

Brooke County entered December 5, 2007. In that order, the circuit court granted a motion for a new trial filed by the appellee, Wesley Cross, following a jury verdict finding the appellant, Mark Smith, not guilty of negligence in the underlying motor vehicle accident. Mr. Smith argues that the circuit court abused its discretion in granting a new trial. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, we are of the opinion that the circuit court committed reversible error. Accordingly, we reverse the decision below.


On August 10, 2004, the appellant, Mark Smith, was traveling west on a two-lane road near Wellsburg, West Virginia. As Mr. Smith was attempting to make a left-hand turn into a nearby driveway, across the east-bound lane, he collided with a vehicle driven by James Yost. Mr. Yost's vehicle was also traveling west and was attempting to pass Mr. Smith's vehicle at the time of the accident. The appellee, Wesley Cross, was a passenger in Mr. Yost's vehicle and suffered numerous personal injuries as a result of the accident.

According to Mr. Smith, he looked into his rearview mirror and side-view mirror prior to attempting the left turn, but did not see Mr. Yost's vehicle. Mr. Smith testified as follows:

A. Well, I pulled out onto Washington Pike and I was driving up to my friend's house. I looked in my rearview mirror when I pulled out onto the highway, because it kind of comes up—you know, people can come flying up from behind you and you not know it until once you get out there. And I was going up and right before I pulled into his driveway, I looked in my middle rearview mirror and then I looked in my side view mirror. I didn't see nobody.

Q. Had you slowed your vehicle just before—

A. I started slowing down when I got towards my friend's house, yes.

Q. And had you begun your turn into the driveway?

A. I started to turn in and I heard skid mark—or I heard squealing, the tires. And then I heard a horn. And at that time that's when we collided.

Q. Where did the collision occur in relationship to the driveway that you were intending to go into?

A. Just right there in front of the driveway.

During trial, Mr. Cross testified that Mr. Yost began passing Mr. Smith at the beginning of a legal passing zone. Conversely, however, Corporal Richard Gibson, of the West Virginia State Police, who was the investigating officer, testified that the collision occurred in a no-passing zone. He explained that the distance from the beginning of the no-passing zone for west-bound traffic, to the point of impact, was 151 feet. Corporal Smith further testified regarding the West Virginia Uniform Crash Report, completed as a result of the accident, and noted that a contributing factor to the accident was the improper passing on the part of Mr. Yost.

In the accident report, Corporal Gibson also noted that another contributing circumstance to the accident was the failure of Mr. Smith to give a proper signal of his impending left-hand turn. At trial, however, the parties were in dispute as to whether Mr. Smith had, in fact, given a proper left-turn signal when he attempted his left-hand turn. Immediately following the accident, Mr. Smith told the investigating officer that he did not believe his turn signal was on because that is what he had been told by Mr. Yost and Mr. Cross. During trial, however, Mr. Smith testified that after all the vehicles had left the scene of the accident, and upon returning to his vehicle and turning it on, he saw that his left-turn signal was still on and blinking. Thus, according to Mr. Smith, any statement he may have made to Corporal Gibson concerning whether or not his turn

675 S.E.2d 902

signal was on, would have been made prior to his actual return and starting of his vehicle.

Following the conclusion of the evidence and closing arguments of counsel, the jury was presented with the following question on the verdict form: "Do you find from a preponderance of the evidence that the Defendant, Mark Smith was negligent and his negligence contributed to or was a proximate cause of the accident?" The jury responded in the negative, and rendered a verdict in favor of Mr. Smith. Thereafter, Mr. Cross filed a motion pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, arguing that Mr. Smith was guilty of negligence as a matter of law.2 Following a September 21, 2007, hearing, the circuit court, in its December 5, 2007, order, granted Mr. Cross' motion for a new trial and set aside the jury's verdict. Specifically, the circuit judge found that Mr. Smith was "guilty of negligence as a matter of law by turning left without looking effectively to see the passing vehicle in which [Mr. Cross] was riding as a non-negligent innocent passenger."

During the September 21, 2007, hearing, the circuit judge explained his reasoning for setting aside the jury's verdict as follows:

THE COURT: Okay. I am quite concerned on the looking effectively part of this case. You know,...

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