Yates v. Mancari

• Decision Date: 15 July 1969
• Docket Number: No. 12753,12753
• Citation: 168 S.E.2d 746,153 W.Va. 350
• Court: West Virginia Supreme Court
• Parties: Mildred YATES et al. v. Louise MANCARI et al.

Page 746

168 S.E.2d 746

153 W.Va. 350

Mildred YATES et al. v. Louise MANCARI et al.

No. 12753.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 21, 1969.

Decided June 10, 1969.

Dissenting Opinion July 14, 1969.

Rehearing Denied July 15, 1969.

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 jury determination.

2. The burden of proving contributory negligence rests on the defendant, but the jury may look to all the evidence offered by both the plaintiff and the defendant in determining whether the plaintiff is or is not guilty of contributory negligence.

3. 'Contributory negligence on the part of the plaintiff is an affirmative defense. There is a presumption of ordinary care in favor of the plaintiff, and where the defendant relies upon contributory negligence, the burden of proof rests upon the defendant to show such negligence unless it is disclosed by the plaintiff's evidence or may be fairly inferred by all the evidence and circumstances surrounding the case.' Point 6, syllabus, Leftwich v. Wesco Corporation, 146 W.Va. 196, (119 S.E.2d 401.)

4. If the negligence of the plaintiff contributes proximately to the injury of which he complains, such negligence precludes recovery and places an imperative duty on the jury to find for the defendant.

5. 'An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.' Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255, (151 S.E.2d 330.)

6. 'It is reversible error to give an instruction which tends to mislead and confuse the jury.' Point 5, syllabus, Sydenstricker v. Vannoy, 151 W.Va. 177, (150 S.E.2d 905.)

7. 'Ordinarily, when contributory negligence of the plaintiff is relied on as a defense, it is prejudicial error to give for the plaintiff an instruction which directs the jury to find for the plaintiff if certain recited facts are believed by the jury from the evidence, but which instruction does not sufficiently negative contributory negligence on the part of the plaintiff. The error involved in the giving of such erroneous instruction is not corrected by the giving to the jury of other instructions covering contributory negligence.' Point 7, syllabus, Adkins v. Minton, 151 W.Va. 229, (151 S.E.2d 295.)

8. In an action based on negligence for damages for injury suffered by the plaintiff, in which the defendant relies upon the defense of contributory negligence, a permissive instruction which, in substance, tells the jury that if the jury believes from a preponderance of the evidence that the defendant was guilty of negligence which was the sole proximate cause of the injury to the plaintiff, the jury may find for the plaintiff, is erroneous in that it fails to negative the defense of contributory negligence upon the part of the plaintiff and tends to mislead and confuse the jury in that it would permit the jury to return a verdict for either the plaintiff or the defendant. Under such instruction the jury could return an improper verdict for the plaintiff who was guilty of contributory negligence or for the defendant who was guilty of primary negligence even though the plaintiff was not guilty of contributory negligence.

McDougle, Davis & Morris, Fred L. Davis, J. M. Handlan, Parkersburg, for appellants.

Preiser, Greene & Hunt, W. Dale Greene, L. Alvin Hunt, Charleston, for appellees.

HAYMOND, President:

The plaintiffs, Mildred Yates and Carl Yates, instituted this action in the Circuit Court of Jackson County to recover damages from the defendants, Louise Mancari and her husband Henry Mancari, for personal injury suffered by Mildred Yates, hereinafter sometimes referred to as the plaintiff, when she was struck by an automobile operated by Louise Mancari, hereinafter sometimes referred to as the defendant. The jury returned verdicts against the Mancaris in favor of Mildred Yates in the sum of $5,000.00 and in favor of Carl Yates in the sum of $2,500.00 and on application of the defendants this Court granted this appeal and supersedeas on July 8, 1968.

The accident occurred on November 13, 1963, on Gibbs Street in Ravenswood, West Virginia, at approximately 5:00 p.m. Gibbs Street as shown by the evidence is 21.4 feet wide. A tractor trailer, the width of which is not shown in the record, was parked along the north curb of Gibbs Street in close proximity to a building used as a laundromat. According to Mildred Yates the weather was misty and the streets were damp from the mist. She testified that she had been to the laundromat where she was employed to take care of some business and was returning to her home which required her to cross Gibbs Street in a southerly direction. She states: 'I came to the door; I looked up and down Gibbs Street; I could see, you know, out the door pretty good ways down toward Route 2; then I came down on the pavement; I looked again, but there was some view shut off by the trailer; I looked up and down the street; I looked up Gibbs Street, up and down; I turned around, took two steps, turned around; as I took two steps, looked down Gibbs Street and Mrs. Mancari's car was right upon me.' She further testified that she was approximately twenty- five feet to the rear of the tractor trailer at the time she last looked up and down Gibbs Street and was struck on her right leg by the left bumper of the Mancari car. A motion for a directed verdict in favor of the defendants at the conclusion of plaintiffs' evidence was overruled.

For the defendants Louise Mancari testified that she was proceeding in an easterly direction on Gibbs Street at a speed of about fifteen miles an hour; that the weather was 'half rain, half snow'; that her headlights were burning and that the streets were damp. She further states that she was looking straight ahead but did not see Mildred Yates until she stepped from behind the tractor trailer and that Mildred Yates was about two feet to the rear of the trailer when she stepped out and had stepped 'two or three feet' from the rear of the truck when the automobile struck her. The defendants again moved for a directed verdict in their behalf at the conclusion of all the evidence which motion was overruled and as heretofore stated the jury returned verdicts in favor of the plaintiffs.

Errors assigned in this Court are the sufficiency of the evidence, the overruling of the motions for directed verdicts, and the giving and the refusal of certain instructions.

The initial assignment of error to be considered in this case is whether, under the evidence, the defendant was guilty of negligence which was the proximate cause of the injury to the plaintiff or the plaintiff was guilty of negligence which contributed proximately to such injury. If this opinion is to serve its purpose a more detailed description of the scene of the collision is necessary. Gibbs Street in the town of Ravenswood runs from east to west intersecting on the west with Route 2 which runs north and south along the Ohio River at that point. 312 feet from Route 2 Virginia Street intersects Gibbs Street, it being a north-south street that ends at its intersection with Gibbs. The area of the scene of the accident is shown by a plat, which was prepared by a registered civil engineer, and is made a part of the record by stipulation of the parties. To the north of the Intersection of Gibbs and Virginia Streets and 14 1/2 feet from the north curb of the intersection is the laundromat building. The plaintiff testified that she left that building from the east door, there being two doors facing Gibbs Street, and at that point she would be almost opposite the east side of Virginia Street where it intersects with Gibbs Street. Although it is agreed by all witnesses who testified that a truck was parked on the north side of Gibbs Street near the intersection, the rear part being near the intersection with Virginia Street, no witness testified as to the truck's dimensions. The attorneys apparently assumed from questions that were asked that it was eight feet wide, that being the maximum permitted by law in this State. There is some contradiction in the testimony of the plaintiff as to where she was struck with reference to the rear of that truck. In discovery testimony she apparently indicated that she was one to two feet to the rear of it while at the trial she unequivocally stated that she was twenty-five feet to the east of that vehicle. A careful study of the plat shows that if the plaintiff came out of the east door of the front of the laundromat building and was going to her home, there being no contradiction as to that, she would have gone out of her way to the west if she went to within four feet of the rear of the truck to cross Gibbs Street. If she were attempting to cross Gibbs Street twenty-five feet to the rear of the truck she would be upon a direct route to her home.

Actually there is not much conflict in the testimony of the plaintiff and the defendant as to the plaintiff's position in Gibbs Street when she was struck except as to the distance from the rear of the truck where the plaintiff was struck This question was asked the plaintiff and she made the following answer: 'Q. If you were to imagine an imaginary center line on Gibbs Street, Mrs. Yates, at the moment you were struck, on which side of that center line would you have been? A. I was next to the laundromat.' These questions were asked the defendant on direct examination to which she made the following answers: 'Q. What did you do when she came from behind this trailer and out about Two feet into the path of your car? A. I applied my brake instantly. Q. How far did your car travel to the point where it came to rest? A. Approximately three to five feet. Q. Was your car Still in...