Wilson v. Edwards

• Decision Date: 14 July 1953
• Docket Number: No. 10513,10513
• Citation: 138 W.Va. 613,77 S.E.2d 164
• Parties: WILSON, v. EDWARDS et al.
• Court: West Virginia Supreme Court

Page 164

77 S.E.2d 164

138 W.Va. 613

WILSON, v. EDWARDS et al.

No. 10513.

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1953.

Decided July 14, 1953.

Rehearing Denied Nov. 13, 1953.

Syllabus by the Court

1. To be an intervening cause of an injury the negligent act or omission must be a new effective cause which, operating independently of anything else, becomes the proximate cause of the injury.

2. 'Where two or more persons are guilty of negligence, which in point of time and place concur, and together proximately cause or contribute to the injury of another, they are guilty of concurrent negligence for which, in an action by the injured party or, in case death results therefrom, by his personal representative, recovery against them may be had.' Point 2, syllabus, Sigmon v. Mundy, 125 W.Va. 591 .

3. Separate and distinct acts of negligence of two or more persons constitute the proximate cause of an injury when they continue in unbroken sequence until the injury occurs and directly and immediately contribute to and are the efficient cause of the injury.

4. In an action to recover damages for personal injury or wrongful death 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.

5. Instructions must be based upon the evidence and an instruction which is not sustained by evidence should not be given.

6. Duplication of instructions is neither necessary nor desirable.

7. Refusal of an incomplete instruction is not error.

8. An instruction which tends to mislead the jury is erroneous and should be refused.

9. An instruction which does not correctly state the law is erroneous.

10. An abstract instruction is not favored but the action of a court in giving such an instruction is not necessarily reversible error.

11. 'When a case has been tried and the questions of fact arising in it have been submitted to a jury and a verdict has been fairly rendered, and the trial court has committed no error of law, this Court will not disturb the verdict unless manifest wrong or injury has been done or it clearly appears that the verdict is contrary to the weight of the evidence or that it is without any evidence to support it.' Point 11, syllabus, Thrasher v. Amere Gas Utilities Company, W.Va. .

H. H. Rose, Jr., Furbee & Hardesty, Russell L. Furbee, and C. H. Hardesty, Jr., Fairmont, for plaintiffs in error.

Tusca Morris, A. Blake Billingslea, and Robert C. Morris, Fairmont, for defendant in error.

HAYMOND, President.

In this action of trespass on the case, instituted in October, 1951, in the Circuit Court of Marion County by the plaintiff Martha B. Wilson, Administratrix of the personal estate of William G. Wilson, to recover damages for the wrongful death of her husband William G. Wilson, a jury returned a verdict for $10,000.00 against the defendants Richard E. Edwards, Wayman W. Corbin and Leo Simmons and a directed verdict of not guilty against the defendant Bobby G. Fortney who was subsequently dismissed from the case. A motion by the defendants Edwards and Corbin to set aside the verdict and grant a new trial and a similar motion by the defendant Simmons were overruled and on January 23, 1952, judgment was entered in favor of the plaintiff against the defendants Edwards, Corbin and Simmons for the amount of the verdict with interest from December 18, 1951, the date of the verdict, and costs. To that judgment this Court granted a writ of error and supersedeas upon the petition of the defendants Edwards and Corbin. No application for a writ of error and supersedeas was made by the defendant Simmons within the time provided by law and as to him the judgment is not now subject to appellate review.

The case was tried upon the declaration of the plaintiff, which contains a single count, and separate pleas of not guilty filed by the defendants Edwards and Corbin. No plea was filed by the defendant Simmons or the defendant Fortney. After the jury was sworn and before the introduction of evidence, on motion of the defendants, a view by the jury was had of the scene of a collision between an automobile owned by the defendant Fortney and driven by the defendant Simmons and a truck owned by the defendant Edwards which had been previously parked by its driver, the defendant Corbin, on or near the edge of the improved portion of a secondary public highway in Marion County designated as Route No. 64 and known as the Pleasant Valley Road. In that collision which occurred shortly before midnight of September 1, 1954, the plaintiff's intestate sustained the injuries which resulted in his death. At the conclusion of the evidence in behalf of the plaintiff each of the defendants moved the court to direct the jury to return a verdict in his favor, each of which motions the court overruled. Each of the defendants made similar motions at the conclusion of all the evidence. The court overruled all of these motions except the motion of the defendant Fortney which was sustained and, as already indicated, he was dismissed from the case.

The evidence bearing upon the material facts, except those which relate to the exact position of the truck and the condition of the driver of the automobile at the time of the collision, is not conflicting.

The collision between the truck owned by the defendant Edwards and the automobile owned by Fortney and driven at the time by the defendant Simmons occurred about eleven thirty o'clock on Saturday night September 1, 1951, on a secondary public highway designated as Route No. 64 which extends in a southerly direction from the City of Fairmont to the village of Benton's Ferry in Marion County. The improved portion of the road is of concrete construction and its straight sections are fourteen feet in width. The truck which was struck at the rear by the automobile, a 1941 Oldsmobile two door sedan weighing about 3,000 pounds, was placed by its driver, the defendant Corbin, on the right side of the road in the direction of Benton's Ferry about seven fifteen o'clock that evening at a point south of the southern end of a curve in the highway. Immediately north of the curve, which is approximately two hundred feet in length, the road is straight for a distance of from 1500 to 1600 feet. The truck, a 1948 Ford model, which was used to haul and dump coal, was twenty feet in length. Its weight was approximately 12,000 pounds. The width of the body of the truck was seven feet six inches and the distance between the outer edges of its dual tread rear wheels was eight feet. It was equipped with headlights, a rear light, and six small metal reflectors, two at the rear and two on each of its sides, but none of the lights was burning and no flares were placed in front or behind it at the time of the collision. The curve, which is to the left in the direction of Benton's Ferry, is on a slight uphill grade which continues to the end of the curve and the improved part of the road throughout the length of the curve is fifteen feet and ten inches in width. The surface of the improved part of the road on the outer edge of the curve is several inches higher than the surface of the improved part of the road on the inner edge of the curve and the berm or the shoulder on the right side of the road at the southern end of the curve is level with the improved part of the road and is from ten to fifteen feet in width for a distance of slightly more than twenty feet. At the time of the collision the truck was parked, without lights, entirely or partly on this section of the berm. It had been left in that position by the defendant Corbin who, when the wreck occurred, had retired for the night and was in bed asleep in the residence occupied by him and his wife and which was located a short distance to the right and below the level of the road.

Prior to September 1, 1951, the defendant Simmons was employed at an industrial plant in Akron, Ohio, and had been residing in that city. The defendant Fortney, the owner of the Oldsmobile sedan, was also employed at the same plant and also resided in Akron. The wife and the children of the defendant Simmons had continued to reside near Fairmont, in Marion County, and the day before the wreck, he borrowed the automobile from Fortney for the purpose of coming to Fairmont and taking his family to Akron with him. He drove the automobile from Akron to Fairmont where he arrived during the morning of September 1, 1951. He was a brother-in-law of William G. Wilson and his brother John H. Wilson, Jr., and he spent a part of the day with them at the home of their father in Fairmont. While there he and the Wilsons arranged to meet later at the Air Corps Club in Fairmont where dances were held and intoxicating drinks were served. John H. Wilson, Jr., had a social engagement with a young woman and about seven thirty o'clock that evening he and she went together to the club, where they were joined by Simmons and William G. Wilson about ten o'clock that night. There the four remained for about twenty minutes and while they were there Simmons had one mixed drink which contained whiskey and the young woman drank one glass of coca cola. John H. Wilson, Jr., stated that he had one drink at the Air Corps Club but he did not say what the drink was. It does not appear that William G. Wilson drank anything while he and his companions were at that place. After leaving the Air Corps Club they went in the automobile driven by Simmons to a restaurant located south of Fairmont on Route No. 64 known as Evening Inn. They stayed at the place for about thirty minutes and while there each of them drank one glass of beer. Their conduct there was quiet and orderly. When they left the restaurant a few minutes before the collision they intended to go south to Benton's Ferry and then to return to Fairmont by a different route.

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