Walker v. Robertson

• Citation: 91 S.E.2d 468,141 W.Va. 563
• Decision Date: 22 May 1956
• Docket Number: No. 10751,10751
• Parties: Clara WALKER v. Ellen R. ROBERTSON.
• Court: Supreme Court of West Virginia

Page 468

91 S.E.2d 468

141 W.Va. 563

Clara WALKER v. Ellen R. ROBERTSON.

No. 10751.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1956.

Decided March 6, 1956.

Rehearing Denied May 22, 1956.

Syllabus by the Court.

1. A challenge to the array, predicated on the systematic and intentional exclusion of women from the jury, is not well taken, such exclusion being in accord with organic, statutory and common law in effect in this jurisdiction.

2. 'A challenge to the array because of irregularity in the venire facias or in the drawing, summoning or impaneling of the jurors will not be sufficient to set aside a verdict unless the challenge was made before the swearing of the jury, or the party was injured by the irregularity.' Pt. 5, syllabus, State v. Price, 96 W.Va. 498, 123 S.E. 283.

3. 'To form the basis of a legal recovery for the future permanent consequences of the wrongful infliction of a personal injury it must appear with reasonable certainty that such consequences will result from the injury. Possible or probable future injurious effects are too remote and speculative.' Pt. 2, syllabus, Wilson v. Fleming, 89 W.Va. 553, 109 S.E. 810. In some cases such consequences may be shown by lay testimony.

4. When contributory negligence is relied on as a defense, a binding instruction which imperatively directs the jury to find for the defendant should not be given if the instruction does not specifically state the acts or conduct of plaintiff constituting contributory negligence. It is not error for a trial court to amend such defective, binding instruction so as to make it permissive instead of imperative.

5. Concurring negligence relates to persons occupying the position of defendants and 'Arises where the injury is approximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently.' Black's Law Dictionary, Fourth Edition, Page 1185.

Palmer & Elkins, J. Campbell Palmer, III, Charleston, for plaintiff in error.

Pauley & Andrews, E. Franklin Pauley, Larry W. Andrews, Charleston, for defendant in error.

LOVINS, Judge.

This action of trespass on the case brought by Clara Walker against Ellen R. Robertson and W. S. Robertson in the Common Pleas Court of Kanawha County, West Virginia, resulted in a verdict and judgment in favor of the plaintiff and against the defendant in the sum of $3,600, W. S. Robertson, the other defendant having been dismissed by the trial court. The plaintiff and the remaining defendant will be hereinafter so designated.

The object of the action was to recover damages allegedly resulting when the plaintiff was struck by an automobile operated by the defendant on the 27th day of July, 1953, which occurred on Capitol Street between Quarrier and Lee Streets, Charleston, West Virginia.

On the day of the accident, the defendant, in going to the business area of Charleston to meet her husband, drove her automobile in a westerly direction on Quarrier Street to the intersection with Capitol Street, thence in a northerly direction on Capitol Street. At the point of the accident, Capitol Street is a one way street, vehicles moving on such street in a northerly direction. That portion of such street used for vehicular traffic consists of three slabs of concrete, each of which is approximately 10 feet in width, and appropriate markings show three lanes of traffic.

Plaintiff who resides in a rural district, in company with her daughter, her daughter-in-law and her infant grandchild, came to Charleston in an automobile. They parked such automobile and made their way to a store on the west side of Capitol Street. Being unable to obtain the merchandise they desired at such store, they started to the east side of the street to another store, crossing at a point which is not a street intersection and where there was no marked pedestrian cross-walk. The plaintiff crossed the west and middle lanes of traffic and was entering on the east lane of traffic where she was struck by the automobile operated by the defendant.

The plaintiff, her daughter and daughter-in-law testified that she was struck by the left front fender of defendant's automobile. The defendant, on the contrary, testified that the plaintiff ran into the left rear fender. The plaintiff's right limb was fractured near the knee joint.

The plaintiff testified that she looked for approaching automobiles and did not see any before she entered the vehicular portion of the street, although the street at the point of the accident is straight. The defendant testified that she was driving fifteen or twenty miles an hour near the middle of the street, was keeping a lookout, that she turned to the right 'the least little bit' to 'get to the curbstone' and did not see the plaintiff until the accident occurred. Some of plaintiff's witnesses testified that there was a red traffic light suspended by wire at or near the center line of Capitol Street just south of the point of accident. Defendant testified that no such light was located at the point indicated by plaintiff's witnesses, but had been removed prior to the accident and lights on posts at or near the street corners had been substituted. The testimony of the defendant in this particular was corroborated by an electrician who had installed the lights on the posts.

After the accident, the plaintiff was assisted by two bystanders and thereafter taken to a hospital in defendant's automobile, accompanied by defendant's husband and the plaintiff's relatives.

At the hospital a physician was summoned who made an examination and applied a cast to the injured limb. Plaintiff was then permitted to go home where she remained in bed for approximately five weeks. The testimony of the plaintiff, her daughter and daughter-in-law tends to show that she was unable to perform farm chores or do any housework for approximately eight weeks after the accident. Plaintiff testified that she still suffers pain and disability from the injury.

The attending surgeon indicated that there had been a good recovery from the injury, that when he last saw plaintiff on or about the 22nd day of September, 1953, she was still suffering some discomfort. The testimony of the surgeon is not positive as to the permanency of the injury, though the testimony of plaintiff and her witnesses indicates that she still suffers pain and is disabled as a result of the injury.

At the conclusion of plaintiff's evidence, the defendant moved for a directed verdict in her favor and when all of the evidence was introduced, she likewise offered a peremptory instruction and a motion for a directed verdict. The motion for a directed verdict in each instance was overruled and the peremptory instruction refused.

The defendant applied for, and obtained, a writ of error to the Circuit Court of Kanawha County. On a hearing of such writ, the judgment of the trial court was affirmed.

Defendant contends that the Circuit Court and Common Pleas Court of Kanawha County erred in the following: (1) The Circuit Court erred in affirming the judgment of the trial court. The trial court erred (1) in failing to consider testimony of plaintiff's witnesses as to the location of the red traffic light as an evidence of contributory negligence; (2) in admitting the testimony of plaintiff's witnesses as to the speed of defendant's automobile; (3) in refusing to declare a mistrial; (4) in overruling the challenge to the array of the jury; (5) in finding the defendant negligent; (6) in failing to find that the plaintiff was contributorily negligent as a matter of law; (7) in giving plaintiff's instruction number 2; (8) in refusing to give defendant's instruction number 2 as offered and amending the same; and, (9) in refusing defendant's instruction number 3.

The alleged error of the Circuit Court of Kanawha County in affirming the judgment of the Common Pleas Court will be considered and discussed under the assigned errors of the trial court.

The testimony of the witnesses relative to the existence of a red traffic light suspended by wire at or near the center of Capitol Street, even if false, only went to the credibility of plaintiff's witnesses and since the jury has passed on that question, we are not called upon to appraise or discuss the same. It suffices to say that the jury gave credit to other testimony offered by the plaintiff.

The objection to testimony of plaintiff's witnesses as to the speed of defendant's automobile is devoid of merit. An examination of the record shows that the plaintiff's witnesses did not testify as to the rate of speed of defendant's automobile, but did testify that it was going at a fast rate of speed. We think that any witness is qualified to say that a vehicle is moving fast or slow without specifying the rate of speed.

Defendant's assignment of error relative to the refusal of the court to direct a mistrial is grounded on evidence of plaintiff who stated that she had hospital insurance and the admonition of plaintiff's counsel impliedly warning against the introduction of the question of insurance. The record discloses no evidence which shows or tends to show that the defendant was protected by insurance. Such assignment of error by the defendant lacks merit.

After the return of the verdict, and as a ground for setting it aside, the defendant challenged the array of the jury on the ground that women had been intentionally and systematically excluded from the jury, contending that she was deprived of her lawful rights by such exclusion.

The Constitution of West Virginia, Article III, Sections 10, 13 and 14 relates to trials by jury. The common law, unless changed or modified by statute, is in force in this state. Constitution, Article VIII, § 21. At common law, a jury consisted of twelve men. Lovings v. Norfolk & W. Ry. Co., 47 W.Va. 582, 584 et seq., 35 S.E. 962. Code, 52-1-1 provides in substance that all male persons twenty-one years of age and not over...