Spaur v. Hayes

Citation147 W.Va. 168,126 S.E.2d 187
Decision Date26 June 1962
Docket NumberNo. 12130,12130
CourtSupreme Court of West Virginia
PartiesJ. 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.

BROWNING, Judge.

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: '* * * This Spaur boy was lying on the road, I would say, six to ten feet behind the body of the car. I raised his head in my hand, and he gasped his last gasp in my hand. Then I saw Onslow [Rastle] who was hanging out of the car or with his head and arms down. That part was out of the car, and part was--as I remember it--of course, it was an excitable time. That is how I recollect. Then the Siers boy was lying full length in the car still breathing.' 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: 'The Spaur boy was south of the rest. As well as I remember, the Rastle boy was on the other side of the car or parts of the car, I should say. As well as I remember, one of them was on the northern side of this car or parts of it, and the other one was on the southern side. As to how many feet away, I couldn't say.' He was then examined as follows: 'Q. Where was the Siers boy found? A. He was found lying on the seat of the car. Q. Which seat? A. I couldn't tell you, sir. Q. Concerning the Rastle boy do you recall any more of a particular description of where he was found? A. He was lying over part of the car--a piece of tin, I should say. I don't know exactly what part it was. One foot was up over--well, it was about this much of his body [indicating the head and shoulders] lying on the ground.' On cross-examination, the witness testified: 'Q. Now the Siers boy was in the wreckage of the car? A. He was lying on a seat. Yes, sir. Q. But the car was so torn up you couldn't tell whether it was the front or back seat? A. After when I put my light down in there, and he was still breathing, all I thought about was getting him to the hospital. Q. The seat part of the car where the Siers boy was lying had been thrown out, hadn't it? A. I couldn't say. It was in the mangle of----. Q. Of the wreckage? A. Wreckage, yes. It was in that. * * * A. Yes, sir. The frame and so forth, the part of the body. I don't remember of even seeing that. Now, this one here--of course, I looked down into this here wreckage here and found the Siers boy. * * * Q. And it [Rastle's body] was lying down over on top of a piece of metal? A. Part of it, yes. Q. There wasn't anything on top of his body? A. Not on top of his body, no. Q. Now, where you found the Rastle boy's body was some distance from the part of the wreckage in which you found the Siers boy's body? A. No, not too much distance, no, because the Rastle boy was here, and the Siers boy right back of him. Q. As shown in the diagram. A. That is right. Q. And the Siers boy's body was in the wreckage, and the Rastle boy's body was outside or lying on top of a piece of metal? A. That is right. * * *' On redirect, in response to a question as to the position of Siers with reference to Rastle, the witness answered: 'A. He was east--more south. Well, it will be south, a little bit south but of the east, I would say.'

Mr. Null, who arrived at the scene after the Siers boy had been removed, testified: '* * * Q. Clarence Spaur was on the berm? A. Yes, on the berm. Q. Was that on the Ireland [north] or the Braxton [south] side of the tree? A. I remember him as being on the Ireland side of the tree. Your picture on your display would show the other side, but I remember him as laying on the Ireland side. He wasn't far from the car. Q. What was the position of the Rastle boy? A. He was in the wreckage of the car when I saw him on the road side of the tree. Q. Could you determine what portion of the wreckage he was in? A. Well, from the looks of the car, I should say, it was the front end, and the front part of the car. The car was torn up so bad it was hard to tell one end from the other, for that matter, when I first saw it. Q. Do you recall the position of the car or the part of the car that the Rastle boy was in; in what position was it? A. Well, as near as I can tell it was mashed. The frame had been wrapped around the tree, and the wrecked part of the car, parts of it, were strung all over. It was such a mess it would be hard to tell. Q. Were you present when the Rastle boy was removed from the wreckage? A. Yes. Q. Who removed him. A. This Alva Alkire and myself. * * * Q. Do you recall how he was removed from the car? A. The only thing I recall that this wreckage was--just reached down in the wreckage and pulled him up out. Alkire, when we got him--what of him was intact--one leg was severed, and Alkire got this one leg out, as I remember it. Q. Did you and Alkire together lift the body out, or just who lifted the body out of the car? A. As I remember it, Alkire and I both lifted the main part of the body out. Q. In what manner did you find the body in the wreckage? * * * A. Well, I would say just exactly--as I remember, there was something laying across this severed leg. I couldn't tell what it was, and the body was--I wouldn't know how to explain it. The body was in the car like it had been thrown. * * * Q. Could you determine from inspecting the automobile where the door would have been on the body of the car? A. As near as I can tell, the left door about the center of the car hit the tree. Q. In relation to the doors on the automobile could you place the Rastle boy's body? A. I would say in the wreckage a little to the front of the doors. Q. Which doors? A. The left--I mean, the front door, the part that hit the tree. Q. Which side of the car hit the tree? A. I would say, the left side.' On cross-examination, Mr. Null testified: 'Q. I believe part of the Rastle boy's body according to your recollection was lying on the ground? A. No. It was in the wreckage of the car. Q. Was any part of his body touching the ground? A. I don't know. I don't remember that. Q. It could have been? A. It is possible. Q. Where was the Rastle boy's body with relation to the tree that the car hit; was it at the tree or from it? A. Out from the tree just a little on the--towards the road. * * * Q. It was lying on top of some part of the car? A. That is, as I remember it, yes. * * *'

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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