Workman v. Wynne
| Decision Date | 30 October 1956 |
| Docket Number | No. 10814,10814 |
| Citation | 94 S.E.2d 665,142 W.Va. 135 |
| Parties | Sylvia WORKMAN, Administratrix of the Estate of Ray Workman, deceased, v. J. F. WYNNE. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. When the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for the jury.
2. 'Where the facts which control are not disputed and are such that reasonable minds can draw but one conclusion from them, the question of contributory negligence barring recovery is one of law for the court.' Point 5, syllabus, Krodel v. Baltimore and Ohio Railroad Company, 99 W.Va. 374.
3. Remarks of an attorney for one of the parties in an action at law, made during his argument to the jury, which are objected to by the opposite party but which are not made a part of the record, will not be considered, and the action of the trial court in denying motions of the opposite party to declare a mistrial and to set aside the verdict, on the ground that such remarks are prejudicial, will not be reviewed or disturbed by an appellate court upon writ of error.
D. Grove Moler, Mullens, for plaintiff in error.
Bailey, Worrell & Bailey, C. S. Worrell, James C. Lyons, Pineville, for defendant in error.
In this action of trespass on the case instituted in the Circuit Court of Wyoming County, the plaintiff, Sylvia Workman, Administratrix of the Estate of Ray Workman, deceased, seeks to recover damages from the defendant, J. F. Wynne, for the wrongful death of Ray Workman caused by the alleged negligence of the defendant. Upon the trial of the case the jury returned a verdict in favor of the plaintiff for $10,000.00 on September 30, 1955. The circuit court overruled the motion of the defendant to set aside the verdict and grant him a new trial and on November 5, 1955, entered final judgment for the plaintiff for the amount of the verdict with interest and costs. To that judgment this Court granted a writ of error and supersedeas upon the petition of the defendant on March 12, 1956.
The plaintiff's intestate, Ray Workman, a young unmarried man about twenty four years of age, sustained the injuries which resulted in his death in a collision between a 1948 Kaiser-Frazier sedan automobile owned and driven by him and a 1953 Chevrolet two door sedan automobile owned by the West Virginia Department of Public Safety and operated by the defendant J. F. Wynne, a member of the department on patrol duty at the time. The collision occurred about nine thirty o'clock on Saturday night, October 23, 1954, on the intersection of a public highway known as West Virginia Route No. 10 with a private unimproved road at a point approximately four miles west of Pineville in Wyoming County.
The section of West Virginia Route No. 10 where the collision occurred is straight for a distance of approximately 1,300 feet from the crest of a two per cent grade to the intersection of a private unimproved road, known as the Lum Hollow Road, where the collision occurred and beyond that point in an easterly direction toward Pineville for an additional distance of 1,150 feet. There is another private road which intersects the highway about 600 feet west of the Lum Hollow Road intersection. The improved portion of the highway is of a uniform which of 19 feet. The width of the berm on the north or left side of the highway in the direction of Pineville is approximately 5 feet and the width of the berm on the opposite or right side of the highway varies from 11 feet to 16 feet.
About nine o'clock on the night of the collision the defendant J. F. Wynne, a member of the department of public safety who at the time was stationed at Mullens, accompanied by W. A. Gosnell, also a member of the department of public safety, Wilburn Bolt, Chief of Police of Pineville, James Hicks, a constable of one of the districts of Wyoming County, and Max Goode, left the office of the county jail, where they had been together for a short time, for the purpose of patrolling roads in Wyoming County in the Chevrolet automobile of the department. The defendant and Gosnell occupied the front seat and Hicks, Bolt, and Goode occupied the rear seat of the automobile. After going to a place known as the Annetta Drive-In where they drank some coffee they proceeded through Pineville westward towards Oceana on West Virginia Route No. 10. A short distance beyond and west of a place known as the Pineville Drive-In Theater, the entrance to which is located about 1,035 feet west of the intersection of the Lum Hollow Road and near the crest of a two per cent grade of the highway, the defendant, who was driving the automobile, turned it and started back in the direction of Pineville. After the automobile had passed the Pineville Drive-In Theater and when it was approximately 1,000 feet from the Lum Hollow Road, the defendant decided to turn the automobile at the intersection to return to the Pineville Drive-In Theater, and at some point between 1,000 feet and 75 feet from the intersection he placed in operation the mechanical flashlight signal device to indicate that he intended to make a left turn at the intersection and he continued its operation until the automobile entered the intersection. As the automobile approached the intersection with the signal working its speed was about 25 miles per hour until a short distance from the intersection when its speed decreased to between 5 and 15 miles per hour. The automobile was in good mechanical condition, it was equipped with standard headlights, which were burning, and rear lights, and it carried a rear West Virginia State Police license plate. Between the Pineville Drive-In Theater and the Lum Hollow Road intersection it was immediately followed by another automobile, the headlights of which were also burning. This automobile did not attempt to pass the automobile driven by the defendant. Both automobiles were travelling to the right of the center line of the road until the automobile driven by the defendant turned to the left to enter the intersection.
At the automobile driven by the defendant entered the intersection of the Lum Hollow Road and when it had reached a point about four feet to the left of the edge of the hard surface portion of the highway it was struck near the left front door by the front end of the Kaiser-Frazier automobile owned and driven by Ray Workman in which a young man named Robert Stewart was also riding in the front seat at the time of the collision. The automobile driven by the defendant was knocked or pushed forward several feet, was turned around, and came to a stop in a diagonal position with both front wheels on the hard surface part of the road and the rear wheels, or one of them, on the berm. The defendant and Gosnell were knocked or thrown from the automobile and each of them was injured.
The automobile driven by Workman proceeded from the point of the collision along the left berm of the highway for a distance of approximately 80 feet, passed beyond a culvert over a ditch or small run, struck a tree stump and came to rest on its side in the run with its front end pointing in the opposite direction from that in which it was travelling when the impact occurred. Ray Workman was killed and Robert Stewart received severe injuries which confined him in a hospital for a period of thirteen days. Both automobiles were wrecked in the collision. Robert Stewart instituted an action against Wynne which was tried in June 1955, before the trial of this case but, of course, the result of the action prosecuted by Stewart does not appear from the evidence.
When the automobile driven by Ray Workman travelling behind the automobile driven by the defendant and the automobile immediately following it approached the intersection of the Lum Hollow Road it was running at a speed of 50 to 55 miles per hour and when it came to within about 112 feet from the intersection of Lum Hollow Road it passed to the left of the center line and continued on a slight diagonal on that side of the highway until it went on the berm at or near the scene of the collision. Its course was clearly indicated by two parallel tire marks which extended from the point where it crossed the center of the highway to the place where the collision occurred.
The automobile which was behind the automobile driven by the defendant when the collision occurred proceeded on its way before its identity or the identity of its occupants could be discovered by the persons who remained at the scene of the wreck.
The foregoing facts are not disputed. There is, however, a conflict in the evidence as to whether the headlights on the automobile driven by Ray Workman were burning, whether the horn on that automobile was sounded, and whether Ray Workman was under the influence of intoxicating liquor at the time of the collision.
The principal witness produced by the plaintiff with respect to the manner in which the collision occurred was Robert Stewart. He testified that as the automobile driven by Ray Workman passed the Pineville Drive-In Theater and approached the intersection of the Lum Hollow Road it was travelling at a speed of 50 to 55 miles per hour; that he did not see the other automobile behind the automobile driven by the defendant until the automobile driven by Ray Workman started to pass the other automobile; that he did not see the automobile driven by the defendant until it turned into the intersection when the collision occurred; that the automobile driven by the defendant turned to the left 'all at once' as the automobile driven by Ray Workman started to pass the automobile driven by the defendant; that the automobile immediately following the automobile driven by the defendant was a dark colored 1950 Chevrolet and was travelling at a distance of about one car length...
To continue reading
Request your trial
-
Petros v. Kellas
...are questions of law for the court. Graham v. Crist, W.Va., 118 S.E.2d 640; Brake v. Cerra, W.Va., 112 S.E.2d 466; Workman v. Wynne, 142 W.Va. 135, 94 S.E.2d 665; Daugherty v. Baltimore and Ohio Railroad Company, 135 W.Va. 688, 64 S.E.2d 231. It has also held that when the evidence, though ......
-
Hollen v. Linger
...640; Brake v. Cerra, 145 W.Va. 76, 112 S.E.2d 466; Wolfe v. Beatty Motor Express, Inc., 143 W.Va. 238, 101 S.E.2d 81; Workman v. Wynne, 142 W.Va. 135, 94 S.E.2d 665; Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672; Matthews v. Cumberland and Allegheny Gas Company, 138 W.Va. 639, 77 S.E.2d 18......
-
Graham v. Wriston
...adhere to that fundamental principle since the case of Walker v. Robertson, supra. Brake v. Cerra, W.Va., 112 S.E.2d 466; Workman v. Wynne, 142 W.Va. 135, 94 S.E.2d 665. The instruction in the instant case told the jury that if the plaintiff was guilty of contributory negligence, he could '......
-
Yates v. Mancari
...W.Va. 78, 138 S.E.2d 710; Graham v. Crist, 146 W.Va. 156, 118 S.E.2d 640; Brake v. Cerra, 145 W.Va. 76, 112 S.E.2d 466; Workman v. Wynne, 142 W.Va. 135, 94 S.E.2d 665; Prichard v. City Lines of West Virginia, Inc., 136 W.Va. 278, 66 S.E.2d 276; Ray v. Clawson, 123 W.Va. 99, 14 S.E.2d 259; S......