Thomas v. Ramey
| Decision Date | 10 October 1972 |
| Docket Number | No. 13106,13106 |
| Citation | 156 W.Va. 191,192 S.E.2d 873 |
| Court | West Virginia Supreme Court |
| Parties | Roy Lee THOMAS v. Louise RAMEY and Lewis Ramey v. UNITED STATES of America. |
Syllabus by the Court
1. Point 4 Syllabus, Bank of White Sulphur Springs v. Lynch, 93 W.Va. 382, (116 S.E. 685).
2. 'When the material facts are undisputed and only one inference may be drawn from them by reasonable minds the questions of negligence and contributory negligence are questions of law for the court.' Point 3 Syllabus, Graham v. Crist, 146 W.Va. 156, (118 S.E.2d 640).
3. 'When the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties so that a verdict adverse to such party can not stand, the court should direct a verdict in his favor.' Point 6 Syllabus, Preston County Coke Company v. Preston County Light and Power Company, 146 W.Va. 231, (119 S.E.2d 420).
4. Point 7 Syllabus, Deputy v. Kimmell, 73 W.Va. 595, (80 S.E. 363).
5. 'This Court has held in many cases that the violation of a statute or an ordinance is prima facie actionable negligence when it is the natural and proximate cause of an injury.' Point 3 Syllabus, Lewis v. McIntire, 150 W.Va. 117, (144 S.E.2d 319).
Bowers, File, Hodson & Payne, W. H. File, Jr., Beckley, for appellant.
Thornhill, Kennedy & Vaughan, David T. Kennedy, Beckley, for appellee.
This civil action was instituted in the Circuit Court of Raleigh County by Roy Lee Thomas against Louise Ramey and Lewis Ramey, her husband, to recover damages for personal injuries, pain and suffering sustained by the plaintiff, and medical expenses contracted by him which were occasioned by his being struck by an automobile owned and operated by Louise Ramey while he was crossing Heber Street in the city of Beckley. Prior to the trial of the case Lewis Ramey was dismissed as a defendant and the United States of America was permitted to intervene, having paid, on behalf of the plaintiff, medical and hospital expenses incurred as a result of plaintiff's injuries. Upon the trial of the case, the jury returned a verdict in favor of the defendant. The circuit court, by an order entered on January 8, 1971, set aside the jury verdict and ordered that the plaintiff be granted a new trial. It is from this order that an appeal to this Court was granted.
In this opinion Roy Lee Thomas, the plaintiff below and the appellee here, will be referred to as plaintiff; the United States of America will be referred to as intervenor; and Louise Ramey, the defendant below and the appellant in this Court, will be referred to as defendant.
The sole question presented for decision in this Court is whether the trial court should have set aside the jury verdict and granted the plaintiff a new trial. The propriety of the trial court's action in this regard necessarily involves a determination of whether the trial court should have given Plaintiff's Instruction No. 1, which is as follows: 'THE JURY IS INSTRUCTED that under the law and evidence in this case your verdict must be in favor of the plaintiff, Roy Lee Thomas, and the intervenor, the United States of America, and against the defendant, Louise Ramey.' The trial court refused to give this instruction and submitted the case to the jury on the question of the primary negligence of the defendant and the contributory negligence of the plaintiff. After the jury verdict was returned in favor of the defendant, the plaintiff and intervenor moved the court to set aside the verdict for the reasons that: (1) the verdict was contrary to the law and evidence; (2) the court erred in refusing Plaintiff's Instruction No. 1; and (3) the court erred in giving Defendant's Instructions Nos. F and I. The court held in its order setting aside the jury verdict and granting a new trial that it had erred in refusing Plaintiff's Instruction No. 1 and in giving Defendant's Instructions Nos. E, F and I, which instructed the jury with respect to contributory negligence. If the plaintiff was not guilty of contributory negligence as a matter of law and the defendant was guilty of primary negligence as a matter of law, then Plaintiff's Instruction No. 1 should have been read to the jury.
The accident took place at the intersection of Prince and Heber Streets in the city of Beckley. Heber Street is a one-way street with two lanes of traffic and one lane for parking on its right side, going the way of the traffic. Heber Street passes by the courthouse and ends at the point it intersects with Prince Street. There was no light regulating traffic at the intersection, but there was a stop sign, which was situated on the right hand side of the street, as one proceeds with the traffic, and on the other side of the street was a sign indicating that Heber Street was a one-way street. There was a marked walkway for pedestrians across Heber Street at the point it intersected with Prince Street.
The plaintiff, who was in the army at the time and was engaged in recruiting people for the army and was stationed in Beckley, testified that he was going to the Armed Forces Examining Station when he approached the intersection of Prince and Heber Streets. The automobile traffic on Heber Street would have been coming from his left. He further stated that before starting to cross Heber Street, at the marked crosswalk, he looked both ways for traffic. Seeing no traffic, the plaintiff stated that he proceeded to cross the street and, when he was within about two steps of reaching the opposite side of the street, he noticed, out of the corner of his eye, a car to his left. Almost simultaneously he felt the impact of the car on his left leg. He said he did not see the car prior to that time but could have if he had looked. He further testified that he 'assumed that I warded off the car, or put out my hand instinctively, because it was a little sore in the wrist.' Plaintiff was not knocked from his feet and proceeded on across the street.
After spending a short time with the defendant, during which they 'exchanged information in regard to names and so forth,' the plaintiff went to the Armed Forces Examining Station, where Dr. Ansel and Dr. Herrara, army physicians who were at the station at that time, examined him and advised him to go to a hospital. The plaintiff said that at that time 'I had pain across the lower part of the back, and it was rather excruciating pain, and it seemed like by the time I got down there I was feeling real nauseated at my stomach from the pain.' The plaintiff further stated, 'I noticed a very little soreness in the wrist, and I can assume probably this resulted when I tried to ward the car off and stuck my hand out.' Dr. Ansel's examination of the plaintiff revealed evidence of redness along the left side of the upper left leg.
Louise Ramey, the defendant, testified that prior to the accident she was proceeding in her automobile on Heber Street. As she approached the intersection of Heber Street with Prince Street, she stopped behind another car in the left lane of traffic; that the car in front of her 'pulled out and went to the left'; that she 'pulled up to where the car had been' and stopped her car, waiting for traffic to go by. There was a lane for traffic to her right, but there were no cars in it.
On cross-examination the defendant testified as follows:
'Q Now, you say you saw him when he was coming out from the curb on the right hand side?
A Yes, sir. I was looking at him as he crossed the street.
Q Well, Mrs. Ramey, did you follow him all the way across the street with your eyes?
A I looked at him as he came across, and then when I saw he was about to leave the front of my car, which was in front of the two cars, I looked right to see if there was any traffic coming from the right, and then back again.
Q Well, Mrs. Ramey, if you were looking at him all the way across the street is there any reason why you pulled out before he cleared your car on the left?
A I didn't pull out, sir. Apparently I let up on the brake just slightly. Mr. Thomas was walking very slowly, and took longer to cross the street than I thought he would.
Q But he had come in your vision all the way across the two lanes, the parking lane, the other lane, the right hand side of your car, and gotten almost clear over to the left--
A Yes.
Q All in your line of vision.
A Yes, sir.
Q And then you let up and came forward.
A I let up, but I did not push on the gas.
Q I didn't say that. I say you let up and your car went forward.
A Yes, sir.'
The applicable ordinances of the City of Beckley are as follows:
'Sec. 13--1. Definitions.
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