Young v. Duffield

• Citation: 162 S.E.2d 285,152 W.Va. 283
• Decision Date: 09 July 1968
• Docket Number: No. 12710,12710
• Court: Supreme Court of West Virginia
• Parties: Myrtle YOUNG and Lester Young v. C. S. DUFFIELD.

Page 285

162 S.E.2d 285

152 W.Va. 283

Myrtle YOUNG and Lester Young v. C. S. DUFFIELD.

No. 12710.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1968.

Decided July 9, 1968.

Syllabus by the Court

1. 'A verdict of a jury which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will on proper motion be set aside by the court.' Point 5, Syllabus, Lightner v. Lightner, 146 W.Va. 1024 (124 S.E.2d 355).

2. 'It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved.' Point 1, Syllabus, The Star Piano Co. v. Brockmeyer, 78 W.Va. 780 (90 S.E. 338).

3. The judgment of a trial court in setting aside a verdict and awarding a new trial is entitled to peculiar weight and its action in this respect will not be disturbed on appeal unless plainly unwarranted.

4. An appellate court is more disposed to affirm the action of a trial court in setting aside a verdict and granting a new trial than when such action results in a final judgment denying a new trial.

5. Courts are not required to believe that which is contrary to physical facts and if the verdict of the jury is based upon testimony which is contrary to physical facts, it will be set aside and a new trial awarded.

Poffenbarger & Bowles, L. F. Poffenbarger, Martin C. Bowles, Charleston, for appellants.

Jackson, Kelly, Holt & O'Farrell, Winfield T. Shaffer, Charleston, for appellee.

CAPLAN, Judge:

This civil action was instituted in the Court of Common Pleas of Kanawha County by the plaintiffs, Myrtle Young and Lester Young, her husband, to recover from the defendant, C. S. Duffield, damages for personal injuries sustained by Myrtle Young and property damages to the automobile of Lester Young. Such damages are alleged to have been the result of a collision between the automobile driven by plaintiff Myrtle Young and the vehicle of the defendant, C. S. Duffield, driven by him.

Upon trial of this case, the court overruled the defendant's motion for a directed verdict and the jury returned a verdict for the defendant, upon which verdict the court entered judgment. Subsequently, the plaintiffs moved the court to set aside the verdict and grant them a new trial. This motion was granted and the defendant appealed the ruling of the court to the Circuit Court of Kanawha County. The appeal was granted by the circuit court and upon consideration thereof the final judgment of the Court of Common Pleas was reversed and the case was remanded to said court with directions that judgment be rendered on the jury verdict. It is from this action of the Circuit Court of Kanawha County that the plaintiffs prosecute this appeal.

The collision in which plaintiff Myrtle Young was injured occurred approximately at noon on April 3, 1964 in the City of Charleston at the intersection of Noyes Avenue and Thirty-third Street. Noyes Avenue extends from east to west and Thirty-third street runs north and south. Noyes Avenue terminates on the west side of Thirty-third Street, that being the entrance to the parking lot of Charleston Memorial Hospital. This intersection is a three-stop junction, there being a stop sign on Noyes Avenue for westbound traffic, a stop sign on the hospital parking lot just prior to the entrance to Thirty-third Street, and a stop sign on Thirty-third Street for northbound vehicles. These streets have concrete surfaces of twenty feet in width with a seven and one-half foot berm on each side.

The plaintiffs allege in their complaint that Myrtle Young was driving along Noyes Avenue in a westerly direction and proceeded to the intersection of Noyes Avenue and Thirty-third Street; that, in compliance with the stop sign at said intersection, she stopped her vehicle and thereafter proceeded cautiously into the intersection where she completed a left-hand turn and drove in a southerly direction on Thirty-third Street. As she was almost through the intersection, the defendant drove his automobile from the hospital parking lot on to Thirty-third Street, having failed to stop at the stop sign, and struck the rear end of the Young automobile causing plaintiff Myrtle Young to lose control of her vehicle and collide with a vehicle parked on Thirty-third Street.

On the evidence adduced at the trial, the principal conflict in the testimony related to whether or not the defendant stopped at the stop sign prior to entering Thirty-third Street. As noted, it was alleged by the plaintiffs that no stop was made. This allegation was supported by a disinterested witness who observed the collision. This witness testified that he saw the defendant's vehicle emerging from the parking lot at a very slow rate of speed. In answer to a direct question, he stated that the defendant's vehicle did not come to a complete stop prior to proceeding into the intersection. The defendant took the stand and testified that as he was proceeding from the parking lot on to Thirty-third Street, he stopped at the stop sign, looked to his right and to Noyes Avenue but could not see to his left because there were cars parked on the berm and that a large truck blocked his view. He then stated that he shifted into low gear and started to move slowly across Thirty-third Street. According to his testimony, before he could see around the truck, the Young car came from his left through the intersection and 'tore off my bumper guard and badly damaged my grill work and went on through the intersection without stopping * * *.' Upon cross-examination, the defendant admitted that he signed a statement for the police immediately after the collision in which he said he was driving east; that he stopped at the stop sign; that he didn't see anything and pulled out and hit the car coming out Thirty-third Street in the right rear. The record reveals that the damage to the plaintiffs' car was to the right rear portion and the damage to the defendant's car was to the right front end.

On this appeal the plaintiffs say that the Circuit Court of Kanawha County erred in the following particulars:

'1. In reversing and setting aside the judgment of the Common Pleas Court of Kanawha County and remanding the case to that court with directions to render judgment on the verdict.

2. The court erred in holding that the evidence was sufficient to support the jury's verdict for the defendant.

3. The Court empletely disregarded the admitted and clearly established physical facts which are contrary to evidence of the defendant.

4. The Court erroneously disregarded the proof that the entrance to the hospital is a private driveway.

5. Flagrant error was committed by the Court in holding that the giving of defendant's Instruction Number 5, which instruction misquoted the City Ordinance, was a harmless error.

6. The Court's judgment is against the plain and decided preponderance of the evidence.

7. Error was committed by the Court in failing to consider Chapter 17C--9--4 of the Official Code of West Virginia, being Article 41, Section 4 of the Official Code of the City of Charleston. (Duly proffered).'

While several assignments of error are noted, the plaintiffs' principal contention is that the circuit court erred in holding that the evidence was sufficient to support the jury's verdict for the defendant. The defendant on the other hand takes the position that there was evidence to support the jury's verdict for the defendant and that in view of many authorities cited such jury verdict should not be set aside by the court. This, of course, is based on the well established principle that the jury is the trier of the facts and that this duty should not be usurped by the courts.

In setting aside the verdict of the jury, the trial court noted that in its judgment the verdict was clearly against the weight of the evidence, and further, that the evidence did not support a verdict for the defendant. As recognized by the learned trial judge, it was not his province to substitute his judgment for that of the jury on factual issues. The validity of this principle is unquestioned, it being well established that the jury is the trier of the facts and that its verdict determines conflicts in the evidence. Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710; Graham v. Crist, 146 W.Va. 156, 118 S.E.2d 640; Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598.

While a jury verdict is entitled to great respect, a jury is not infallible and there are circumstances in which its verdict should be set aside. It is equally well established that a verdict of a jury which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will, on proper motion, be set aside by the court. McCoy v. Cohen, 149 W.Va. 197, 140 S.E.2d 427; Lightner v. Lightner, 146 W.Va. 1024, 124 S.E.2d 355; Campbell v. Campbell, 146 W.Va. 1002, 124 S.E.2d 345; Mulroy v. Co-operative Transit Company, 142 W.Va. 165, 95 S.E.2d 63. This proposition is well demonstrated by the language in Syllabus No. 5 of the Lightner case, supra, which reads as follows: 'A verdict of a jury which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will on proper motion be set aside by the court.' Thus, even though a verdict based upon conflicting evidence is held in high regard, courts should not permit a jury to ignore the law and evidence in arriving at a verdict. See Koger v. Mutual of Omaha Ins. Co., W.Va., 163 S.E.2d 672 (decided this Term); Speicher v. State Farm Mutual Automobile Ins. Co., 151 W.Va. 292, 151 S.E.2d 684; Laxton v. National Grange Mutual Insurance Company, 150 W.Va. 598, 148 S.E.2d 725.

Here the jury verdict was disapproved by the trial judge. In this circumstance such verdict is not entitled to the same weight on appeal as one which has...