Wise v. Crown Const. Co., Inc., 13894

• Citation: 264 S.E.2d 463,164 W.Va. 393
• Decision Date: 01 April 1980
• Docket Number: No. 13894,13894
• Parties: Helen Y. WISE and Max Wise v. CROWN CONSTRUCTION COMPANY, INC. et al.
• Court: Supreme Court of West Virginia

Page 463

264 S.E.2d 463

164 W.Va. 393

Helen Y. WISE and Max Wise v. CROWN CONSTRUCTION COMPANY, INC. et al.

No. 13894.

Supreme Court of Appeals of West Virginia.

Decided April 1, 1980.

Dissenting Opinion April 3, 1980.

Syllabus by the Court

1. "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." Syl. pt. 3, Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217 (1953).

2. "In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken." Syl. pt. 1, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334 (1971).

James O. Watkins, Jr., Fairmont, for appellants.

McNeer, Highland & McMunn and James E. McNeer, Clarksburg, for Crown Const.

Steptoe & Johnson and James M. Wilson, Clarksburg, for Thorofare Mkts.

PER CURIAM:

The appellant in this personal injury proceeding, Helen Wise, contends that the Circuit Court of Marion County erred in setting aside a jury verdict in her favor. We agree.

On December 11, 1973, the appellant, while walking from her car to a Thorofare Market, slipped and fell on ice located on the parking lot of Middletown Mall in Fairmont. As a result of the fall, she suffered serious injuries to her wrist.

This action, for the injuries resulting from the fall, was instituted in the Circuit Court of Marion County against Crown Construction Co., Inc. and First Union Real Estate Equity and Mortgage Investments, a business trust, the owners of the Middletown Mall, and against Thorofare Markets, Inc., the lessee of one of the stores in the Mall. The case was tried before a jury on April 6, 1976.

Evidence adduced during the trial of the case showed that prior to December 11, 1973, there had been a heavy snowfall in the Fairmont area. The snow had been scraped from the parking lot of the Middletown Mall and had been left in large piles adjacent to the parking area. During the day, a part of the snow had melted, and the meltwater had flowed across the parking lot in long streams approximately one foot wide. When the weather had turned colder, these streams had frozen into sheets of ice. It was on one of the sheets of ice that the appellant slipped and fell. Regarding what happened, the appellant testified that she did not look at the ground as she opened the door and got out of the car. She stated that she had taken only a couple of steps when she fell. At the time of the fall, she was looking at the front of the store.

After the presentation of evidence, the trial court gave a number of instructions, including Defendants' Instruction No. 5, which told the jury that if they believed that the accident had occurred by reason of the contributory negligence of the appellant, then they must find for the defendants. The court also gave Defendants' Instruction No. 8, which informed the jury that the appellant had the duty to look effectively and to see what she should see in the area.

After deliberating, the jury returned a verdict in favor of the appellant and awarded her $15,000 damages.

The defendants moved to set aside the verdict on a number of grounds including the ground that the appellant had been guilty of contributory negligence as a matter of law. By his order entered May 21, 1976, the Judge of the Circuit Court of Marion County granted the defendants' motion to set aside the appellants' verdict.

We have repeatedly held that 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. Bradley v. Sugarwood, Inc., W.Va., 260 S.E.2d 839 (1979); Burgess v. Jefferson, W.Va., 245 S.E.2d 626 (1978); Utter v. United Hospital Center, Inc., W.Va., 236 S.E.2d 213 (1977); Wager v. Sine, W.Va., 201 S.E.2d 260 (1973); Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217 (1953).

While the law of this State does impose a duty upon a person to look, and to look effectively, and to exercise ordinary care to avoid a hazard, we have held that a person is not bound to be continuously looking under penalty that if he fails to do so and is injured his own negligence will defeat recovery of damages sustained. Cf. Bradley v. Sugarwood, Inc., W.Va., 260 S.E.2d 839 (1979); Sydenstricker v. Vannoy, 151 W.Va. 177, 150 S.E.2d 905 (1966). Negligence has been defined as conduct unaccompanied by that degree of consideration attributable to the man of ordinary prudence under like circumstances. Patton v. City of Grafton, 116 W.Va. 311, 180 S.E. 267 (1935).

In the case before us the appellant fell shortly after exiting from her car. Her exiting the car necessarily involved some maneuvering out of the car, closing of the car door, and generally orienting herself to start toward her intended destination. In such circumstances it would not be unreasonable for a jury to conclude that the process may have distracted her from making any detailed observations of the ground adjacent to the car.

Because reasonable men might have drawn different...