Spurlin v. Nardo

• Citation: 114 S.E.2d 913,145 W.Va. 408
• Decision Date: 06 July 1960
• Docket Number: No. 11096,11096
• Court: Supreme Court of West Virginia
• Parties: Mildred SPURLIN v. Corrine NARDO.

Page 913

114 S.E.2d 913

145 W.Va. 408

Mildred SPURLIN v. Corrine NARDO.

No. 11096.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 1960.

Decided July 6, 1960.

Syllabus by the Court

1. A violation of the statute dealing with adequate brakes on a motor vehicle constitutes prima facie negligence.

2. 'A prima facie case of actionable negligence is that state of facts which will support a jury finding that the defendant was guilty of negligence which was the proximate cause of plaintiff's injuries, that is, it is a case that has proceeded upon sufficient proof to the stage where it must be submitted to a jury and not decided against the plaintiff as a matter of law.' Pt. 6, syllabus, Morris v. City of Wheeling, 140 W.Va. 78 .

3. When the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for jury determination.

4. 'A person is a sudden emergency, who acts according to his best judgment or, because of insufficient time to form a judgment, fails to act in the most judicious manner, is not guilty of negligence if he exercises the care of a reasonably prudent person in like circumstances.' Pt. 8, syllabus, Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639 .

5. Contributory negligence and assumption of risk are not identical. The essence of contributory negligence is carelessness; of assumption of risk, venturousness. Knowledge and appreciation of the danger are necessary elements of assumption or risk. Failure to use due care under the circumstances constitutes the element of contributory negligence.

6. In order for evidence of tests or experiments to be admissible, the essential conditions at the time of the experiment must be substantially similar to those existing under the occurrence, but it is not necessary that the conditions be identical in every respect. Where tests or experiments are used in evidence before the jury, the human element must be separated from the mechanical element and the jury properly instructed thereon before such tests are admissible for jury consideration.

Handlan, Garden, Matthews & Hess, Thomas B. Miller, Wheeling, for plaintiff in error.

Jeremy C. McCamic, McCamic & Tinker, Wheeling, for defendant in error.

BERRY, Judge.

The plaintiff, Mildred Spurlin, instituted this action of trespass on the case in the Circuit Court of Ohio County, West Virginia, against the defendant, Corrine Nardo, as a result of an automobile accident in which the plaintiff was a guest passenger in an automobile owned and being driven by the defendant. The plaintiff sustained personal injuries as a result of the accident and after the submission of the case to the jury it returned a verdict in favor of the plaintiff in the amount of $5,000. The motion to set aside the verdict and grant the defendant a new trial was overruled and judgment was rendered on the verdict by the trial court. A writ of error and supersedeas to this judgment was granted by this Court on November 2, 1959.

The accident in question occurred on May 26, 1958, at the foot of 29th Street Boulevard hill, in the City of Wheeling. About 9 o'clock p.m. on the date of the accident the plaintiff and defendant left the center of Wheeling in defendant's automobile and drove along the same route where this accident occurred, up the same 29th Street Boulevard hill to the town of Bethlehem, which is adjacent to the City of Wheeling, where they attended a bridal shower given for one of the fellow employees of the plaintiff and defendant.

The plaintiff and defendant left the shower about 11 o'clock p. m. to return to Wheeling. At the intersection of Orchard Lane and Ridgecrest Road, or Route 88, both the plaintiff and defendant noticed that there was something peculiar about the foot brake because the defendant had to press the brake pedal all the way forward before the car would come to a complete stop. However, after proceeding on Route 88 the foot brake was tested by pumping it several times and on each occasion the car would jerk and throw the plaintiff forward and backward in her seat. After such application of the brake, both the plaintiff and defendant were of the opinion that it was all right. The plaintiff asked the defendant if the brake was all right and the defendant replied that it was and both were satisfied with regard to it being in proper working condition at that time. They then proceeded down Route 88 and entered the 29th Street Boulevard hill intersection, after looking to determine if there were any cars approaching. The defendant then proceeded to drive her automobile in second gear into the 29th Street Boulevard hill. After they started down the hill, while traveling at a speed of approximately 35 miles per hour, she attempted to use the foot brake, at which time she discovered that it did not function properly. After this discovery, the defendant apparently became panic-stricken as she testified that when she discovered she had no brakes she became 'petrified' and the first thing she thought of was death and that her mind was a blank, that she did not know what was going to happen and told the plaintiff that they should jump from the car. During this time she had unintentionally caused the car to slip out of second gear and it was rapidly picking up speed. The plaintiff told the defendant to remain claim, to keep her head and not to get hysterical. She also advised her against jumping from the car and told her to apply the hand brake, which the defendant attempted to do but it failed to stop the car. The defendant attempted to put her car in second gear again, as well as low gear, but sh says the gears started to 'strip' and the car would not go into low gear. It appears that the defendant did not use the clutch when she tried to get in in second or low gear, because she had her left foot flush against the floor board and her right foot on the foot brake with such force that the heel on her right shoe came off. Neither the plaintiff nor the defedant turned the ignition off while the car was traveling down the hill. The defendant managed to pass a tractor trailer approaching in the opposite direction as she was proceeding down the hill, and when they arrived at the bottom of the hill, where there is a curve to the right, the car tipped to the left and the defendant, believing the car was going to turn over, completely lost control of it and jumped from the car. At the time the defendant jumped from her car she called to the plaintiff to jump, but the plaintiff remained in the car and it ran into the rear of a parked truck, causing the injuries to the plaintiff.

One of the witnesses who testified for the plaintiff was an expert mechanic with thirty years' experience as a repairman and thirty-five years' as a driver of all type of cars. This witness testified that prior to the trial he had made certain tests with a 1949 Ford automobile, the same make and model as the automobile driven by the defendant which was involved in this accident. He stated that the foot brake on the automobile used by him to make the tests was in good working condition but that he did not use the foot brake during the test. The tests were made on 29th Street Boulevard hill, the same hill on which the defendant had driven her automobile down at the time of the accident. The first test was made with the car traveling at a speed of 60 miles per hour and the witness stated that he shifted into second gear and reached the bottom of the hill at a speed of 16 miles per hour. He testified that he then drove the automobile down in second gear with the engine off and that the car stopped at the first flat place at about half-way down the hill. He stated that he also drove the car at a speed of approximately 60 miles per hour into 29th Street Boulevard hill, placed the transmission in neutral, turned the ignition off and pulled the emergency brake on and that the car stopped at the bottom of the hill. The defendant objected to the testimony of this witness on the grounds that conditions were not the same as those under the circumstances existing at the time the defendant drove her automobile down the same hill, because the defendant was only twenty-one years of age and lacked the mechanical knowledge and experience that this witness had gained over a period of thirth-five years, and also that the sudden emergency created by the failure of her foot brake to function was not present during the time the mechanic was making his tests because he knew his foot brake was in good mechanical condition. The trial court, out of the presence of the jury, indicated that the objection would be well taken if factually correct. The court further stated, in connection with the question of the sudden emergency involved, that the testimony was not admitted to show what any particular driver could do but merely what the car could be made to do. When the jury returned, no instructions were given by the court to the jury as to what it was to consider relative to this evidence, and it was all allowed to go to the jury without any separation of the human element and mechanical element. The charge given by the court did not instruct the jury to consider this testimony only as to what the machine or automobile would do under such circumstances, and the jury was allowed to consider the manner in which the experienced mechanic and driver operated the automobile at the time the tests were made in comparison with the manner in which the defendant, a person with much less experience and mechanical knowledge, operated her automobile under a sudden emergency, and without any instruction to consider the difference in age, experience and knowledge between the two people. The charge given by the court did, however, instruct the jury to take into account the sudden emergency involved in this case, but it did not instruct...