Wager v. Sine

Decision Date21 December 1973
Docket NumberNo. 13229,13229
Citation201 S.E.2d 260,157 W.Va. 391
CourtWest Virginia Supreme Court
Parties, 75 A.L.R.3d 315 Weldon Dean WAGER v. Larry Douglas SINE.

Syllabus by the Court

1. '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, Lightner v. Lightner, 146 W.Va. 1024, (124 S.E.2d 355.)

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. 'The questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them.' Point 3 Syllabus, Davis v. Sargent, 138 W.Va. 861, (78 S.E.2d 217.)

4. 'It is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury on such facts will not ordinarily be disturbed by this Court.' Point 2 Syllabus, Graham v. Crist, 146 W.Va. 156, (118 S.E.2d 640.)

5. Upon a motion for a directed verdict, all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed.

6. It is a well-established general rule that it is negligence as a matter of law for one to drive an automobile at such a rate of speed that it cannot be stopped in time to avoid an obstruction plainly discernible within the driver's range of vision.

7. 'The general rule requiring the driver of an automobile to maintain a speed sufficiently slow to have such control of it that he can stop it within the distance in which he can plainly see an obstruction of danger, does not apply to a case where a dangerous situation which he has no reason to expect suddenly appears in front of his car.' Point 3 Syllabus, Fleming v. Hartrick, 100 W.Va. 714, (131 S.E.2d 558.)

8. When the driver of a truck was operating his vehicle at night and his visibility was obscured by rain, the question of whether the operation of his vehicle at a rate of speed faster than would permit him to stop or control the same within the range of his vision ahead constitutes contributory negligence is a question for jury determination, where the evidence reflects that the obstruction may not have been plainly discernible or where the facts were such that a jury could have believed that the operator was faced with a sudden emergency.

William L. Jacobs and Louie S. Davitian, Parkersburg, for appellant.

J. S. Francis, New Martinsville, for appellee.

SPROUSE, Justice:

This case is before the Court upon an appeal from the final judgment of the Circuit Court of Wetzel County in an action instituted by Weldon Dean Wager, as the plaintiff, against Larry Douglas Sine, as the defendant, to recover damages for personal injuries. It arises out of an accident wherein a truck driven by the plaintiff collided with a severed telephone pole which was lying across State Route 2 in Wetzel County. An automobile driven by the defendant, Larry Douglas Sine, had struck the telephone pole, severed it and knocked it across the highway. The plaintiff truck driver claims that his injuries were the result of the defendant's negligence in striking and severing the pole shortly before the truck impact.

At the conclusion of all of the evidence, the trial court directed a verdict for the defendant and, in a subsequent memorandum opinion, indicated the ruling was based solely on the contributory negligence of the plaintiff. In the trial judge's view, the plaintiff was guilty of negligence as a matter of law, in driving his truck in such a manner that he was unable to bring the truck to a stop before striking the telephone pole.

The only issue in the case is whether the trial court erred in directing a verdict in favor of the defendant and not permitting the issue of contributory negligence to be decided by the jury. The question presented relates solely to liability, therefore, it is not necessary to discuss the medical evidence. Since the issue for resolution requires a review of the evidence, however, it will be necessary to detail at length the facts concerning the accident.

On November 3, 1967, the defendant Sine was proceeding south on State Route 2 in Wetzel County in the vicinity of Paden City. Earlier in the evening, at approximately 6:00 p.m., he had visited a local tavern and had consumed what he characterized variously as a 'couple bottles of beer' or 'two or three bottles of beer'.

He thereafter attended a football game and engaged in other social activities prior to returning south on Route 2 towards Paden City. He testified that the speed of his automobile was 55 or 60 miles an hour.

The portion of the highway where the accident occurred was in bad condition and had been in a bad condition for a number of years. The highway was rough in this location because the pavement was frequently repaired--apparently due to some defect in the structure of the highway.

The defendant was aware not only of the bad condition of the highway, but he was aware of a large 'hump' at one location. He testified that, as he approached this hump, still maintaining a speed of 55 to 60 miles an hour, he pulled his vehicle to the extreme right of the southbound lane to avoid the hump. His automobile left the highway and went onto the berm, which was soft and dropped to a depth of four inches. The defendant attempted to straighten his vehicle back on the highway, but this caused the vehicle to go into a spin. The defendant did not know how many times his vehicle spun around, but it crossed the highway severing the telephone pole located on the berm off the northbound lane of the highway. The pole was completely severed and fell across part of the northbound lane and all of the southbound lane. After striking the pole, the defendant's vehicle came to rest close to the stub of the severed pole adjacent to the northbound lane of traffic.

The left side of the defendant's automobile was damaged and the defendant's leg was pinned between the door and the steering wheel. This, added to his dazed condition, prevented him from getting out of the automobile.

Shortly after the defendant's accident, two apparently impartial witnesses, John Booher and Wayne Sydenstricker, approached the accident scene in Booher's automobile. The Booher vehicle was proceeding north on the highway when the two men observed Sine's wrecked vehicle. They were approximately 350 to 400 feet south of the Sine vehicle when they first saw it. Booher stopped his vehicle approximately 100 feet south of the Sine vehicle, leaving his two left wheels on the hard surface of the highway and the two right wheels on the berm in order that he would not be stuck in the soft berm. Either one or both of these men went to Sine's assistance.

Booher testified that he remembered passing a tractor-trailer truck a short distance south and, having by this time seen the pole lying across the highway, became concerned for the truck driver. Booher left his vehicle and began waving his arms to signal the oncoming truck driver. Both Booher and Sydenstricker testified that the headlights and taillights of the Booher car were burning, and that the left turn signal was flashing.

According to Sydenstricker and Booher, they had passed the tractor-trailer truck approximately one-half to a mile south of the Sine accident. At the time they overtook the truck, Booher was travelling at an estimated speed of 60 to 65 miles an hour. Sydenstricker said the truck was travelling at an estimated speed of 55 miles an hour. Booher stated that, as he left his vehicle to wave at and flag the oncoming truck, he first saw the truck approaching at about 250 yards to the south, and that the lights of the truck were shining straight towards him. He said the truck veered to the left side of the road, proceeded past him and struck the pole.

The plaintiff's testimony on the facts material to the principal issue was completely contradictory to the testimony of Booher. The plaintiff, Wager, stated that he was travelling north on State Route 2 at approximately 40 miles per hour. It was raining and dark. He saw a dark object to his right, causing him to pull his truck to the left and slow his vehicle. The plaintiff stated that there were no lights on any vehicle in the area, and he saw no one waving and flagging traffic. His testimony was that he was 20 to 30 feet from the pole when he first observed it. He slowed the truck again by changing his gears downward, and at the same time applying his brakes, first to the trailer and then to the tractor. After applying his brakes, he was travelling at a rate of speed of 15 to 20 miles an hour at the time of the collision with the pole. He contends he was thrown around in the truck and was injured as a result of the impact.

He said the pole was 'black, dark'. The dark object he had seen on the right was the parked car. He was looking straight ahead and could see north, but at the same time could observe the car. He had tried his lights both on low beam and high beam before getting to the point of the pole. At the time he approached the pole, according to Wager's testimony, his lights probably illuminated to a distance of 150 feet. He said they would have shone farther had it not been for the rain. He said the pole completely covered the left half and most of the right half of the highway as he proceeded north.

Booher was the witness who testified that he stayed by the car on the road, waving and flagging the truck. P...

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