Swiger v. Runnion
| Decision Date | 21 February 1922 |
| Docket Number | 4308. |
| Citation | 111 S.E. 318,90 W.Va. 322 |
| Parties | SWIGER v. RUNNION. |
| Court | West Virginia Supreme Court |
Submitted February 14, 1922.
Rehearing Denied April 4, 1922.
Syllabus by the Court.
Where action is brought to recover damages arising from an automobile collision for injuries to plaintiff and to plaintiff's automobile, for expenses incurred in effecting the cure of injuries to plaintiff's wife and child, and for loss of her services during her illness consequent upon such injuries, it is error to give a general instruction to the jury that, if they find that defendant negligently permitted his automobile to run into plaintiff's and thereby injured plaintiff and his wife and child, or any of them, then the jury shall find for the plaintiff, and assess such damages as they believe from the evidence he is entitled to, because such instruction does not properly limit or define the damages for which plaintiff is entitled to recover for the injuries received by his wife and child.
In an action for personal injuries, growing out of a collision of automobiles on a public road, where the defense relied on is plaintiff's contributory negligence, it is error to instruct the jury that, if they believe that at the time of the collision the defendant's automobile was not on his right-hand side of the road, there is a presumption that defendant was at that time guilty of negligence, and he is liable to plaintiff for the i njuries sustained and that defendant is not relieved from such liability even though the jury may believe that plaintiff did not have his automobile under control at the time, because such instruction ignores such defense.
In an action for damages arising out of an automobile collision where defendant relied upon plaintiff's contributory negligence as a defense, it was error to refuse the following instruction offered by him:
"The court instructs the jury that, if they believe from the evidence in this case that, at the time of the injury and collision complained of in this case, that the plaintiff was running on a public highway at a greater rate of speed than is allowed by law, and did not have his automobile under control at the time of the accident, and as a result he collided with defendant's automobile, he cannot recover in this action because of contributory negligence even if the jury may believe that at the time of the accident complained of the defendant was on the wrong side of the public road, and the jury should find for the defendant."
It is error to instruct the jury that, if they find the plaintiff is entitled to damages, they shall take into consideration the injuries sustained by him, and what amount is necessary to compensate him therefor, and that, if they further find that the defendant did the injuries complained of in a wanton or willful manner, or from a reckless indifference to the rights and safety of plaintiff or his property, they may find such further damages as they may believe the plaintiff is entitled to, in assessing punitive damages the correct rule being that, if the jury find that the acts complained of were malicious or wanton, or in reckless disregard of plaintiff's rights, they may allow punitive damages for such amount as, added to the actual damages sustained, will be sufficient to punish the defendant, and to deter others from committing like offenses.
Error to Circuit Court, Roane County.
Suit by C. C. Swiger against A. J. Runnion. Judgment for plaintiff, and defendant brings error. Reversed, verdict set aside, and cause remanded for new trial.
Thos. P. Ryan, of Spencer, for plaintiff in error.
Harper & Baker, of Spencer, for defendant in error.
Plaintiff, C. C. Swiger, sued defendant, A. J. Runnion, in trespass on the case for damages arising out of a collision of plaintiff's with defendant's automobile, about a quarter of a mile east of the city of Spencer, on the Spencer-Arnoldsburg pike. There are four counts to the declaration, covering injuries to the plaintiff's car, injuries to plaintiff, expenses incurred on account of injuries to his wife and child, and for loss of services of his wife during her consequent illness. There was a verdict for plaintiff. The court refusing to set aside the verdict on defendant's motion, judgment was entered for plaintiff, and defendant obtained a writ of error to this court.
Defendant's counsel complains in this court of the overruling of his demurrer to the declaration, but neither the printed record nor the original record, which is also before us, shows that any demurrer was entered in the court below. While the demurrer cannot be entered here, it may not be improper to say that, in our opinion, the declaration is sufficient.
From the record it appears that plaintiff was driving from Spencer and defendant was driving toward Spencer. The collision occurred at or a short distance beyond a curve in the road, plaintiff's car being on the inside of the curve. A small garage building which then stood about 3 feet from the inside curb obstructed the view of both parties for some distance at or near the curve. About 75 or 80 feet east of the garage there is a small bridge over which the road runs. About the farther end of the bridge defendant claims he passed two men with horses, and hence had to pass them on their left, thus throwing his car over on his left-hand side of the road, and that he passed the horses slowly, and that he did not have time to get his car fully over to his right-hand side of the road before the plaintiff's car, which, as defendant claims, was running at a very high rate of speed around the curve, struck defendant's car; defendant claims that plaintiff gave no warning, and did not have his car under proper control, considering all the circumstances, and he relies on plaintiff's contributory negligence as a bar to recovery. Plaintiff claims he gave proper warning, but that defendant was looking down into the bottom of his car, and paid no attention to the warning if he heard it; that he (plaintiff) had his car under proper control, and that the collision would not have occurred had defendant not been on plaintiff's side of the road. As is usual in such cases, each party seeks to justify himself and to place the whole blame on the other. We express no opinion as to which party is right; we make no comment further than is necessary to afford a clear understanding of the points raised as to the instructions given for plaintiff or refused for defendant.
Defendant complains of instructions Nos. 1 to 5 given at plaintiff's instance. Instruction No. 1 tells the jury that, if they find that plaintiff was driving his car at a reasonable rate of speed, and with his car within his control, and on his right-hand side of the road, and that defendant carelessly and negligently permitted his car to run into plaintiff's car, and cause injury to plaintiff and his wife and child, or any of them, then the jury shall assess such damages for the plaintiff as they believe he is entitled to, not exceeding the amount sued for.
The objection to this instruction is that it does not...
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