Sydenstricker v. Vannoy

• Decision Date: 15 November 1966
• Docket Number: No. 12551,12551
• Citation: 151 W.Va. 177,150 S.E.2d 905
• Court: West Virginia Supreme Court
• Parties: Elmer Ray SYDENSTRICKER v. C. Boyd VANNOY.

Page 905

150 S.E.2d 905

151 W.Va. 177

Elmer Ray SYDENSTRICKER v. C. Boyd VANNOY.

No. 12551.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 1966.

Decided Nov. 15, 1966.

Syllabus by the Court

1. 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.

2. It is the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed by this Court.

3. When an action for the recovery of damages for personal injuries involving conflicting testimony and circumstances upon the questions of negligence and contributory negligence has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless it is plainly contrary to the weight of the evidence, or is without any evidence to support it.

4. 'A person lawfully in a public highway may rely upon the exercise of reasonable care by drivers of vehicles to avoid injury. Failure to anticipate omission of such care does not render him negligent. A pedestrian is not bound, as a matter of law, to be continuously looking or listening to ascertain if automobiles or other vehicles are approaching, under penalty that if he fails to do so and is injured his own negligence will defeat recovery of damages sustained.' Point 7, syllabus, Deputy v. Kimmell, 73 W.Va. 595 (80 S.E. 919, 51 L.R.A.,N.S., 989).

5. It is reversible error to give an instruction which tends to mislead and confuse the jury.

6. An instruction which does not correctly state the law is erroneous and should be refused.

McDougle, Davis, Stealey & Morris, R. E. Stealey, Fred L. Davis, Parkersburg, for appellant.

Richard F. Pence, R. Bruce White, Parkersburg, for appellee.

HAYMOND, Judge.

This is a civil action instituted in the Circuit Court of Wood County, in which the plaintiff, Elmer Ray Sydensticker, sixty eight years of age at the time of the trial, seeks a recovery from the defendant, C. Boyd Vannoy, for personal injuries sustained by the plaintiff early in the morning of July 9, 1961, when he was struck by an automobile owned and operated by the defendant at or near the intersection of Fifth Street and Avery Street in Parkersburg, Wood County, West Virginia. Upon the trial of the case the jury returned a verdict in favor of the plaintiff for $15,000.00 on October 28, 1964, at which time the court rendered judgment for the amount of the verdict with interest and costs, and by judgment rendered June 9, 1965, the court overruled the motion of the defendant to set aside the verdict and grant a new trial. From that judgment this Court granted this appeal and supersedeas upon the application of the defendant.

The plaintiff was struck and injured by the automobile driven by the defendant when the plaintiff, a pedestrian proceeding in a southerly direction, was attempting to cross Fifth Street in the City of Parkersburg. He testified that a few minutes after midnight he arrived at the northern edge or curb of Fifth Street at its intersection with Avery Street with the intention of crossing from the north side to the south side of Fifth Street; that at the time the traffic light at the intersection controlling the traffic on Fifth Street showed green; that he waited at the northern edge of Fifth Street for a period of two or three seconds and when the traffic light changed to red he looked east on Fifth Street, south on Avery Street and west on Fifth Street and did not see any automobile or any people that while the traffic light showed red he proceeded for a distance of eleven or twelve feet south into Fifth Street on the cross-walk at the intersection and at that location in the street the automobile struck him; that he did not see the automobile; that Fifth Street at the point of impact was thirty feet in width; that there were two west traffic lanes indicated by white lines in the northern half of Fifth Street; that when the plaintiff was struck he was in the inside traffic lane and about two feet south of the first white traffic line and the left wheels of the automobile of the defendant were south of that line; that the plaintiff when struck saw the hood of the automobile and then 'blacked out'; that when he 'came to', he saw a policeman or other officer holding his arm to put him on a stretcher and place him in an ambulance; that he felt pain in his right leg; and that he again 'blacked out' and was taken to a hospital. The plaintiff also testified that after he was struck the automobile proceeded west on Fifth Street partly in the first and partly in the second of the two west traffic lanes until it was stopped approximately forty feet west of the intersection with Avery Street. On cross-examination the plaintiff testified that between 8:40 o'clock that evening and the time he arrived at the intersection he had drunk five or six bottles of beer but that he had not been affected by what he had drunk and that he was wearing glasses at the time he was struck. The plaintiff had previously stated in a deposition which he gave on August 7, 1963 that he was at a point six to eight feet south of the north curb on Fifth Street when he was struck but testified that the correct distance as ascertained by a measurement which he had made by stepping the distance the night before he testified was eleven or twelve feet instead of six or eight feet.

The city policeman who assisted the plaintiff in placing him in the ambulance, produced as a witness by the plaintiff, testified that shortly before the plaintiff was injured the witness, operating his automobile west on Fifth Street, came to the intersection and stopped to await the change of the traffic light from red to green; that his automobile was directly in front of the traffic light and there were other automobiles in the rear of his automobile; that while waiting for the traffic light to change he saw the plaintiff in the act of crossing Fifth Street from the northern edge of the street; that the plaintiff had reached a point about twelve feet from the nothern edge of Fifth Street on the cross-walk when he was struck by the automobile of the defendant; that he saw the automobile of the defendant on Fifth Street when he first saw the plaintiff but he did not see where the automobile that struck the plaintiff 'came from'. He stated that there were two traffic lanes on Fifth Street for westbound traffic and that the plaintiff, when he was struck, was in the cross-walk south of the traffic lane near the north curb of the street; that when the automobile of the defendant came to a stop it was on an angle and pointed in a southwesterly direction partly in each of the two west traffic lanes at a distance of approximately seventy five feet west of the place where the plaintiff was struck; that the witness did not observe any lights on the automobile; that after the plaintiff was struck he was lying with his face down on the hood of the automobile; that his belt 'was wedged' around an ornament on the front of the automobile; and that the witness assisted in placing the plaintiff in an ambulance which took him to the hospital.

The defendant, seventy three years old at the time of the trial, testified that he and his wife and another married couple attended a dance at the Eagles Club from shortly before 8:00 o'clock that evening until about midnight and while at the club he had drunk one bottle of beer about 8:00 o'clock; that after leaving the club he and his wife and their guests entered the automobile of the defendant, which was parked a short distance from the club, and with the defendant driving, proceeded north on Avery Street to its intersection with Fifth Street; that his automobile was traveling in the inside traffic lane on Avery Street; that as he approached the intersection of Avery Street with Fifth Street the traffic light turned red and the defendant stopped his automobile to await the change in the traffic light; that at that time the defendant saw another automobile some distance north of the intersection approaching the intersection and traveling south on Avery Street; that the defendant continued to observe that automobile until the traffic light changed from red to green; that the defendant noticed no other automobile at or near the intersection at that time; that after waiting four or five seconds until the traffic light changed, the defendant turned left at the intersection and observed a pedestrian on the sidewalk at a place called the Tile Mart, located on Fifth Street west of the intersection; that he watched this pedestrian and the oncoming car until he made the left turn; that in making the turn he did not sound a horn or give any signal but the headlights on his automobile were burning; that the pedestrian he saw was not the plaintiff; that he watched the pedestrian who was near the Tile Mart until the plaintiff stepped out in front of the automobile; that he stopped his automobile immediately and within about eight feet after striking the plaintiff, whose body was on the hood in front of the left fender of the automobile; that when the automobile came to a stop it was headed west on Fifth Street in the north traffic lane directly in front of the Pure Oil Station which appears to have been located at or near the northwest corner of Fifth Street and Avery Street. The place in front of the Pure Oil Station where the automobile of the defendant came to a stop after striking the plaintiff appears from other testimony to have been approximately thirty five or forty feet west of the intersection.

The defendant also testified that when making the left turn he looked to see whether there was anybody crossing the street on or at the cross-walk at Fifth...