Spaur v. Hayes
Citation | 147 W.Va. 168,126 S.E.2d 187 |
Decision Date | 26 June 1962 |
Docket Number | No. 12130,12130 |
Court | Supreme Court of West Virginia |
Parties | J. A. SPAUR, Adm'r of Clarence R. Spaur, etc. v. Gerald L. HAYES, Adm'r of Onslow Haymond Rastle, etc. Cora FOX, Adm'x of Dennis B. Siers, etc. v. Gerald L. HAYES, Adm'r of Onslow Haymond Rastle, etc. |
Syllabus by the Court
1. 'Before directing a verdict in defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.' Syl. Pt. 1, Fielder v. Service Cab Co., 122 W.Va. 522, 11 S.E.2d 115.
2. Where there is no controversy concerning the actual facts, if different inferences may be drawn therefrom, submission to a jury is required.
Stathers & Cantrall, Mary Frances Brown, Clarksburg, for appellants.
Steptoe & Johnson, Kingsley R. Smith, David C. Clovis, Clarksburg, for appellee.
These two actions for wrongful death arise out of an automobile accident which occurred at approximately 3:00 A.M. on March 18, 1958, in the village of Ireland, Lewis County, West Virginia. By agreement of the parties the cases were consolidated for trial and the following facts were stipulated. The automobile, owned by defendant's decedent, Onslow Haymond Rastle, hereinafter referred to as defendant, and occupied by Rastle and plaintiffs' decedents, Clarence Spaur and Dennis B. Siers, hereinafter referred to as plaintiffs, was proceeding in a southerly direction along U. S. Route 19 when it left the highway in or near a right-hand curve, went off the east or driver's left-hand side of the road and struck a tree, demolishing the automobile and killing all three occupants. All of the decedents were licensed automobile operators and the automobile involved had been purchased by Rastle from Spaur approximately one month previous to the accident. There were no eyewitnesses.
The case was tried in November, 1960, 32 months after the accident, and, owing to vagueness of the description of the physical facts as they appeared after the accident it will be necessary to quote the testimony of the various witnesses as to the pertinent details at some length. Mrs. Julia Crawford, in answer to a question as to the position of the bodies with respect to the wrecked automobile, stated: On cross- examination she testified that the automobile was broken into several pieces which were strewn along the berm and the road, the main part of the automobile body being on the south side of the tree, the only part of the automobile remaining on the north side of the tree, to her recollection, being the radiator.
Mr. Paul Loudin, with reference to the positions of the bodies, stated: He was then examined as follows: On cross-examination, the witness testified: On redirect, in response to a question as to the position of Siers with reference to Rastle, the witness answered: * * *'
Mr. Null, who arrived at the scene after the Siers boy had been removed, testified: On cross-examination, Mr. Null testified: * * *'
D. A. Lucas, apparently a police officer, testified that: he investigated the accident; the left side of the car hit the tree, approximately at the center; there were tire marks, indicating skidding, beginning on the berm on the left-hand side of the highway and continuing one hundred sixty feet, eight inches, to the right-hand side of the car as it stood next to the tree; the car was mainly torn into two parts, the frame being next to the tree and the top and right-hand doors, and other parts, being approximately twelve to thirteen feet away; the motor was thirty-three feet down the highway; and, only the rear part of the front seat remained in the frame of the car. Mr. Skinner testified that the tree which the automobile hit was a locust, eighteen inches in circumference, which was split and leaning...
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