Smith v. Edward M. Rude Carrier Corp.
Decision Date | 13 December 1966 |
Docket Number | No. 12541,12541 |
Citation | 151 W.Va. 322,151 S.E.2d 738 |
Court | West Virginia Supreme Court |
Parties | Mildred K. SMITH, Admrx., etc. v. EDWARD M. RUDE CARRIER CORP., et al. Nelson R. ALESHIRE v. Mildred K. SMITH, Admrx., etc. EDWARD M. RUDE CARRIER CORP. v. Mildred K. SMITH, Admrx., etc. |
1. Evidence which is irrelevant or immaterial and has no probative value in determining any material issue is inadmissible and should be excluded.
2. The burden is upon the plaintiff to establish a prima facie case of negligence against the defendant in order warrant jury consideration but such showing may be made by circumstantial as well as direct evidence.
3. Where credible circumstantial evidence establishes a prima facie case of negligence a jury question exists and it is for the jury to determine whether it is sufficient to overcome direct testimony to the contrary.
4. The jury is not bound to accept uncontradicted testimony when there is evidence of circumstances or physical facts which controvert it.
5. 'Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be enteretained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.' Point 1, Syllabus, Fielder v. Service Cab Company, 122 W.Va. 522 (11 S.E.2d 115).
Deem & Marstiller, James A. Marstiller, Steptoe & Johnson, Jackson L. Anderson, Clarksburg, for appellants.
Clifford, Jones & Williams, James C. West, Jr., McWhorter, McNeer, Highland & Morgan, James E. McNeer, Clarksburg, Herschel Rose, Fairmont, for appellee.
CAPLAN, President:
This is an appeal from an action which arose out of a collision between an automobile operated by Edward R. Smith, decedent of plaintiff Mildred K. Smith, and a tractor driven by defendant Nelson R. Aleshire. In her complaint, Mildred K. Smith, Administratrix of the Estate of Edward R. Smith, alleged that Nelson R. Aleshire, while operating a White tractor, owned by the Marlowe Corporation and leased to Edward M. Rude Carrier Corporation, negligently and unlawfully collided with the automobile operated by Edward R. Smith, causing the latter's death instantaneously. The defendants in this action were the Marlowe Corporation, hereinafter called Marlowe, Edward M. Rude Carrier Corporation, hereinafter called Rude, and Nelson R. Aleshire, an employee of Rude.
After answering the complaint, the defendants filed a counterclaim alleging that the collision and consequent damages were the result of the negligence of Edward R. Smith. Marlowe demanded payment of $5,000.00 for the loss of use of the tractor; Rude sought to recover $3,000.00 for damages to the tractor; and Aleshire claimed damages for personal injuries in the sum of $25,000.00. In addition to the counterclaim, Rude and Aleshire instituted separate actions against the Smith estate, to which counterclaims were filed by the administratrix, Mrs. Smith.
These actions were instituted in the Circuit Court of Marion County, and since they arose from a cause common to all, they were consolidated for trial and heard together. Upon trial of these matters the jury returned a verdict in favor of the plaintiff in the sums of $25,000.00, $15,000.00 of which represented financial or pecuniary loss to the distributees of Edward R. Smith, and $2,138.30 for funeral expenses and damages to the Smith automobile. Marlowe, having been dismissed by agreement of the parties, is no longer a party to this proceeding. Judgment was entered on the verdict and defendants Rude and Aleshire prosecute this appeal.
The collision out of which these actions arose occurred on December 24, 1964, at approximately 5:45 P.M., on State Route 73, near the community of Eldora in Marion County, West Virginia. It was late twilight, the sky was cloudy and the road was dry. The collision occurred in a straight portion of this state highway at a point near the intersection of a secondary road known as Sweeps Run Road. Defendant Aleshire was driving a White tractor, of the approximate weight of 15,000 pounds, toward the city of Clarksburg. The deceased, Edward R. Smith, in a 1957 Chevrolet automobile weighing 3300 pounds, was traveling to the city of Fairmont. As noted, somewhere in the vicinity of Sweeps Run Road these vehicles collided. After the collision the vehicles came to rest several feet off the road adjoining the lane of travel of Smith's car, the tractor pointing away from the highway and the automobile almost parallel to the tractor but facing the road.
There were no eyewitnesses to the actual collision of these vehicles other than the defendant, Aleshire. It is the defendants' position that evidence adduced at the trial on behalf of the plaintiff was insufficient to overcome the direct testimony of the driver of the tractor, Aleshire, and that to submit the case to the jury in those circumstances would permit a finding to be made on speculation and conjecture. The basic question presented on this appeal, therefore, is: Was there sufficient evidence, including physical facts, from which the jury could find, without engaging in speculation, that the collision took place in Smith's lane of travel? In order to resolve this question it is necessary to examine the evidence for the purpose of determining whether such evidence proved negligence on the part of Aleshire or justified an inference thereof.
Robert M. Hanning, a farmer who resides on Sweeps Run Road, appeared as a witness on behalf of the plaintiff. He testified that immediately prior to the accident he was driving a farm tractor with a two wheel cart attached thereto along State Route 73, traveling in the direction of Clarksburg. Hanning was in the same lane of traffic and in front of defendant Aleshire. According to his testimony, he was preparing to turn right into Sweeps Run Road when he observed Smith approaching from the opposite direction. At the same time and prior thereto he had heard the Rude tractor to his rear. Hanning stated that as Smith approached and as he passed him, Smith was in his own lane on the highway and that the road was straight and unobstructed. At approximately the same time, as he was beginning to turn right into the secondary road, he heard what he believed to be air being released from the brakes of the Rude tractor. A few seconds later he heard the collision, at which time he had made his right turn off the highway but related that the two wheels of the cart were still on the blacktop portion of the road. He said he had traveled about the length of his tractor between the time Smith passed him and the time of the impact. Also, he heard the Rude tractor behind him prior to hearing its air brakes and estimated its distance at about twenty five yards. Hanning did not see the collision and could not say where, in relation to the center of the road, it occurred.
Mr. Hanning, after hearing the crash, looked over his right shoulder and noted the movement of the wrecked vehicles. He testified that they moved in a semicircle and across the road and that the 'truck kept kicking to the other side'. The following question was asked and answer given during the direct examination of Hanning:
On cross-examination Mr. Hanning said that at the time of the accident it 'wasn't real dark, but it was getting dark; more like a twilight'. He noted that there were no lights on his tractor. Other than related above, Mr. Hanning testified as to the location of the vehicles after they had come to rest and Mr. Smith's body in relation thereto.
Mr. Ernest Manzo, a deputy sheriff of Marion County who investigated this accident, appeared as a witness on behalf of the defendants. He arrived at the scene at approximately 6:00 P.M. and made certain observations which were included in a written report from which he testified. According to his report he observed skid marks which led from the defendant driver's side of the road to the place where the vehicles left the highway. Mr. Manzo further related that he observed debris, consisting of dry dirt, which was located three feet nine inches to the right of the center line as one traveled toward Clarksburg. This would be in the defendant driver's lane. He further noted that the skid marks on the highway were approximately seventy feet in length, led up to the pile of debris, and from there to the point where the vehicles went off the road. His testimony in relation to the skid marks was somewhat confusing as to their exact location and the number involved. He stated that there were no truck or automobile parts on the highway, although there was broken glass which was not concentrated in any particular location but was on both sides of the road.
Describing the condition of the vehicles after the wreck, Mr. Manzo noted that the automobile was damaged in the front, left side and top. The damage to the truck was on the left front but the headlights were undamaged. This description is supported by photographs introduced as exhibits.
Mr. Gordon S. Ralphsnyder, Jr., was called as a rebuttal witness by the plaintiff. He testified that he arrived at the scene of the accident after Mr. Manzo but prior to the arrival of the wrecker; that in assisting the deputy sheriff in making his observations he had taken several photographs, some of which were introduced as exhibits during the trial; that during his investigation he did not observe any skid marks which could be attributed to the vehicles involved in this collision, nor did he see the debris to which Mr. Manzo referred; and that the...
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