Va. Marshall v. Conrad
| Citation | 118 W.Va. 321 |
| Decision Date | 09 March 1937 |
| Docket Number | (No. 8457) |
| Court | Supreme Court of West Virginia |
| Parties | Virginia Marshall v. Ralph D. Conrad, Admr. |
Appeal and Error
A verdict, inconsistent with physical facts which are admitted to be true or are clearly established, will be set aside as contrary to the plain preponderance of the evidence.
Error to Circuit Court, Ohio County.
Action by Virginia Marshall against Ralph D. Conrad, administrator. To review a judgment for plaintiff, defendant brings error.
Reversed; remanded.
Tom B. Foulk and Wm. J. Gompers, for plaintiff in error.
Schmidt, Hugus & Laas, Byron D. Kuth and Robert H. Trenkamp, for defendant in error.
This is an action for damages for personal injury received by the plaintiff in an automobile collision on a public highway. On writ of error, the defendant complains of verdict and judgment against him in favor of the plaintiff for $4100.00. The principal point relied on for reversal is that the verdict opposes the clear preponderance of the evidence.
At the time of the accident, Virginia Marshall, the plaintiff, was riding in the front seat of an automobile owned and driven by her husband, William H. Marshall. The other automobile involved in the collision was owned and driven by Henry Gundling, who was fatally injured in the crash. Ralph D. Conrad, the defendant, is the administrator of the personal estate of Gundling. The accident happened about nine o'clock at night, in Pennsylvania, on the Lincoln Highway, about fifteen miles west of Pittsburgh, and approximately three hundred feet west of the junction of the Beaver road with the highway. It was a clear night and the roads were dry. The suit is prosecuted under a Pennsylvania statute which authorizes such an action against the personal representative of a decedent. Laws of Pennsylvania 1925, chapter 261, section 1 (b). .
At the point of accident, the cement surface of the highway is thirty feet wide. There is a smooth berm a few feet in width on each side of the concrete.
The Marshall car was traveling east. Its proper channel was on the south side of the middle of the highway. The Gundling car was west-bound. Its side of the highway was the north. At the place of collision and for some distance in each direction, the middle of the road was marked with a white band. Each car, immediately before the collision, was descending a slight grade. The Gundling car was just emerging from a sweeping left cure. The Marshall car was about to leave a long tangent and enter the curve (to its right). The cars collided almost squarely head-on.
The plaintiff and William H. Marshall were witnesses in her behalf. Because of the statute, Code 1931, 57-3-1, forbidding a person to testify respecting personal transactions or communications with a deceased person, in a controversy between the witness or his or her spouse and the estate of the decedent, these two witnesses were closely circumscribed in their testimony. Strode V. Dyer, 115 W. Va. 733, 177 S. E. 878. However, though they were not permitted to testify how the Gundling car approached them, they were allowed to testify concerning the manner in which their own car was proceeding just before the collision. They testified that they were traveling at the rate of about 35 miles per hour and that their car was near the south edge of the hard surface of the highway. As to the position of the cars after the accident, Marshall testified that his car was "diagonally across the road, not directly across, but sort of on an angle."
Two of the Marshall car's passengers, Arthur Brown who was riding on the front seat with the plaintiff and her husband, and Dorothy Marshall, a young lady riding in the rear seat, testified that the Marshall car was proceeding on its right side of the road. Other than stating that she saw oncoming headlights which seemed to be partly on the Marshall side of the road, Dorothy did not attempt to detail how the accident happened. Witness Brown testified that as the cars approached, the Gundling car, at a high speed, was running about the middle of the road and then swung to its left in front of the Marshall car; that after the cars came to rest, the Marshall car was on the north side and the Gundling car was "facing the south side, about three or four feet from the edge of the south side of the road."
Raymond Kronz was a witness for the plaintiff. He was proceeding eastward on the highway in a small truck, being the fourth car in rear of the Marshall car. He testified that a moment before the accident, he pulled his truck to the left with the intention of driving around and passing the three intervening cars and the Marshall car, but on observing approaching headlights (the Gundling car's lights) of a car which seemed to be running in the middle of the highway, he resumed his position in the east-bound line. He said the accident occurred almost instantly after he turned his truck back onto the south side, and that he does not know how it happened. These were all of the plaintiff's witnesses in chief.
In rebuttal, the plaintiff called to the witness stand state policeman, F. A. Gavaghan, who had come to the scene about twenty to thirty minutes after the accident. It does not appear why this witness was not called by the plaintiff to testify in chief, because his testimony bore directly on the very basis of plaintiff's right to recover and was not in the nature of rebuttal. The position of the cars after the accident was one of the most important things in the case. Rebuttal testimony should be strictly limited to the purpose for which it is intended under the rules of admission of testimony. A plaintiff in a law action should not be permitted to reserve for so-called rebuttal the introduction of testimony going to the very basis of his right of action and clearly constituting a part of the case in chief. But, there was not objection to the order in which the state policeman's testimony was introduced, consequently, the point will be deemed to have been waived by the defendant. Gavaghan's testimony with reference to the position in which he found the Gundling car on the highway was contradictory and inconsistent. He first testified that he found the Gundling car sitting near the middle of the highway, at a slight angle, with its rear toward the north edge and the front end at the middle line and extending slightly over it. This meant, of course, that the Gundling car, as he found it, stood with its greater portion on the north side of the...
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