Thomas v. Lupis
| Decision Date | 22 February 1921 |
| Docket Number | No. 4100.,4100. |
| Court | West Virginia Supreme Court |
| Parties | Geoege D. Thomas v. B. M. Lupis. |
Damages New Trial$8,000 for Injury to Face and Head Not Shown to be Permanent Held Excessive; Excessive Verdict Held Ground for New Trial.
A verdict for damages for personal injury, based upon evidence not sufficient to show with reasonable certainty the extent or permanency of the injury, and so excessive as to indicate passion, prejudice, partiality, mistake, or lack of due consideration, should be set aside upon motion for a new trial.
Error to Circuit Court, McDowell County.
Action by George D. Thomas against B. M. Lupis. Judgment for plaintiff, and defendant brings error.
Reversed and remanded.
Strother, Taylor & Taylor, for plaintiff in error.
Anderson, Strother, Hughes & Curd, for defendant in error.
Complaining of a verdict and judgment of $8,000 rendered against him, defendant by this writ of error seeks reversal of such judgment and the award of a new trial. The basis of the recovery was an injury sustained by plaintiff as a result of an automobile accident due to the alleged negligent operation of defendant's car.
On the afternoon of June 7, 1919, plaintiff, an employee of the Welch Cash Store, left Welch in a Ford truck to deliver a load of groceries at Premier, a neighboring town in the same county. With him was a fellow employee of the same company. A short distance from Welch, defendant overtook them while driving a new touring car which he recently had purchased. Accompanying him was his nephew, a young man twenty years of age, who was driving the machine, defendant not yet having learned to drive. Both defendant and his nephew are Italians employed by the McDowell County Na- tional Bank in its foreign department. The two cars were proceeding in the same direction, and defendant, desiring to pass the truck, sounded his horn several times to notify plaintiff of his intention. The latter signaled in response, and without looking back drew oft to the right of the road in order to afford sufficient room for the other ear to pass, at the same time reducing his speed to 6 or 8 miles an hour. Defendant's speed at the moment of passing was about 15 miles an hour. The road at that point is about 18 or 19 feet in width, bounded on the left by a hillside and on the right by a sharp declivity. Plaintiff turned so far to the right that only two of his wheels remained on the concrete road surface, the other two being on the dirt border and within one and a half or two feet of the declivity. The width of the truck which he was driving was only five feet two inches from the outer edge of one hub cap to the outer edge of the other, thus leaving ample room for defendant's car to pass. But in some unaccountable manner the latter did not avail himself of the full space thus afforded him, but passed in exceedingly close proximity to plaintiff's truck, so close in fact that plaintiff and his companion say they felt a jar at the instant of passing, and immediately the truck and its occupants went over the cliff, the former turning entirely over and striking on its wheels. It was in this fall that plaintiff received the injury for which he sues.
His theory of the accident is that the jar was occasioned by contact between the right rear hub of defendant's machine and the left rear hub of the truck. Only two witnesses saw the accident and they were 75 feet in front of the two cars and approaching them in a wagon from the opposite direction, but had driven to the side of the road in order to give the cars room to pass. Both testify that defendant, in attempting to pass plaintiff, drove his machine so close to the truck that they expected to see his right front wheel strike it. It did not do so, however, but they positively assert that his rear wheel "hubbed" the left rear wheel of the truck, thereby causing the jar of which plaintiff and his companion spoke. A blacksmith at the side of the road, who witnessed part of the affair, also testified to his expectation that the front wheel would strike the truck:, but upon seeing it pass safely, he turned to re-enter his shop and did not witness the actual contact of the rear wheels, if any occurred.
In reply, defendant and numerous witnesses testify to the physical impossibility of such contact without leaving some kind of a mark on his car. It is well established by proof that his rear fender extends about three inches beyond the outer edge of the hub cap, and that it bore no mark or scratch of any kind or character. Indeed, the only mark discovered on the car was a dent in one of the hub caps, located by several witnesses as on the left side^ and by one, who examined the ear immediately after the accident, on the right side, though the latter witness did not remember whether it was on the front or rear wheel. There is positive testimony of several witnesses, including defendant and his nephew, that the hub caps were not changed after the accident. And defendant contends that even if the dent was on the right side of the ear, the injured hub cap could not have come in contact with the truck without leaving some mark on the overlapping fender, lie and his nephew unqualifiedly deny, that they in any manner struck plaintiff's truck, and state that they had ipletely passed it without noting any loss of his control waer it, and did not know that an accident had occurred until they heard the...
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