Yeager v. Stevenson

• Citation: 180 S.E.2d 214,155 W.Va. 16
• Decision Date: 02 April 1971
• Docket Number: No. 12912,12912
• Court: West Virginia Supreme Court
• Parties: David YEAGER, etc., v. Alan STEVENSON.

Page 214

180 S.E.2d 214

155 W.Va. 16

David YEAGER, etc., v. Alan STEVENSON.

No. 12912.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1971.

Decided April 2, 1971.

Syllabus by the Court

1. 'A jury verdict based on conflicting testimony, involving the credibility of a witness and approved by the trial court, will not be set aside by this Court on the ground that it is contrary to the evidence unless in that respect it is clearly wrong.' Point 6, Syllabus, Poe v. Pittman, 150 W.Va. 179 (144 S.E.2d 671).

2. 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Point 3, Syllabus, Walker v. Monongahela Power Company, 147 W.Va. 825 (131 S.E.2d 736).

James F. Cain, Elkins, for appellant.

James H. Ware, Philippi, for appellee.

CAPLAN, President:

In this civil action instituted in the Circuit Court of Randolph County the plaintiff, David Yeager, an infant who sues by Graydon Yeager, his father and next friend, seeks to recover damages from the defendant, Alan Stevenson, for personal injuries which he alleges he received as a result of the negligence of said defendant. This matter was tried before a jury and resulted in a verdict for the defendant upon which verdict judgment was entered. It is from this judgment that the plaintiff prosecutes this appeal.

It appears from the record that on February 18, 1967 at approximately 7:00 P.M. the defendant was driving his 1965 Plymouth in a westerly direction between Elkins and Norton in Randolph County, West Virginia. According to the police report the collision, which is the subject of this case, occurred 3.9 miles west of Elkins on U.S. Route 33. At the time, the weather was clear and, although there was no snow on the road, there were some icy spots. The defendant testified that as he drove his vehicle along the highway at a speed of forty to forty-five miles an hour and as he approached the area of the gasoline service station where this collision occurred, he felt something happen to his car which he described as follows: 'there was just a sort of pulling sensation to the left side of my automobile a kind of a jerk sort of and a pull I automatically I guess cut the car away from the line of traffic that may have been there I don't know to the right, and the car went into a skid and almost immediately there was an impact'.

In accordance with the evidence adduced at the trial the defendant's car then hurtled into a bank of snow and ice and on to the Yeager Service Station where it struck a car then being serviced by the plaintiff. The latter car, according to the evidence, was knocked a distance of thirty to forty feet. One witness testified that the plaintiff was hurled thirty feet but another said he was knocked six to eight feet from the point of impact.

Although neither the complaint nor the answer was designated a part of the printed record in this case, the plaintiff obviously charged that the defendant drove his vehicle in a negligent manner which resulted in the alleged injuries. The negligence relied upon was excessive speed. In support thereof the plaintiff produced as a witness Corporal John Leeson, a member of the Department of Public Safety, who investigated the accident and filed a report. Corporal Leeson was asked if his report showed that he had an opinion as to the cause of this accident. He replied in the affirmative, his reply being '(e) xceeding the safe speed.' He based this opinion on the fact that the defendant's vehicle left the highway, penetrated a pile of snow and ice which had accumulated along the side of the road and struck the vehicle in the service station, knocking it forty-one feet. He was not an eye witness to the accident.

A witness, Benjamin Jones, testified that a Red Plymouth had passed him approximately a mile from the scene of the accident, travelling in the direction of Yeager's Service Station, and estimated the speed of the Plymouth as being between seventy and seventy-five miles per hour. He appeared to be confused but eventually insisted that the defendant's car was the car that passed him. The defendant testified that he had passed no car between Elkins and the point of the collision and repeated that he had not driven over forty-five miles an hour. The other witness who testified on the issue of speed of the defendant was Graydon Yeager, father of the plaintiff, who said that he was standing in his filling station behind the counter and saw the headlights of the defendant's car. He testified that '(i)t was coming as a terrific rate of speed.' It was pointed out by the defendant that Mr. Yeager was not stationed in an advantageous position to thoroughly observe the speed of the defendant's vehicle.

The principal defense was an alleged mechanical failure of his automobile. The defendant asserts that prior to the collision, while he was driving along the highway, the left front ball joint broke, thereby causing him to lose control of his vehicle. His testimony in that regard is related above. The defendant further said he had a relatively new car which was regularly serviced and that there was no reason to believe that the ball joint was defective or would break. The defendant did not produce any witnesses, expert or lay, to support his assertion that the ball joint broke prior to the collision. It is undisputed that an examination of the vehicle after the collision showed that there was, in fact, a broken ball joint. Thus, the question in relation to this matter was whether the part was broken prior to the collision or as a result of the impact.

The plaintiff alleges that the failure of the defendant to produce a witness to support his theory shows that the ball joint was broken as a result of the impact and that such impact was caused by the negligence of the defendant in driving at an excessive rate of speed. Furthermore, the plaintiff points out that a broken ball joint would cause the car to fall immediately and that if this had occurred there would be gouge marks apparent on the highway. The absence of such gouge marks, says the plaintiff, conclusively shows that the automobile did not suffer any damage until the collision occurred. Corporal Leeson testified that there were some gouge marks in the surface of the station near the gasoline pumps. It is not clear whether this occurred prior or subsequent to the accident.

The plaintiff assigns as error the court's refusal to grant a directed verdict at the conclusion of all the evidence inasmuch as the defendant did not sustain the burden of proof by failing to offer evidence supporting its allegation that the ball joint broke prior to the collision. A second assignment of error is that the court instructed the jury on the theory of unavoidable accident and sudden emergency. Finally, the plaintiff says that the court's ruling is clearly wrong, it being based on physical impossibilities, improperly submitted issues and compltely against the preponderance of the evidence.

In relation to the plaintiff's assignments of error relative to the evidence, it is pertinent to note that it is the peculiar and exclusive province of the jury to weigh the evidence and to resolve the questions of fact when the testimony is conflicting. Poe v. Pittman, 150 W.Va. 179, 144 S.E.2d 671; Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710; Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598.

It has long been settled in this jurisdiction that a jury verdict approved by the trial court rarely will be set aside. Cogently expressing this view the Court, in point 6 of the syllabus of Poe v. Pittman, 150 W.Va. 179, 144 S.E.2d 671, said: 'A jury...