Young v. Ross

• Decision Date: 19 February 1974
• Docket Number: No. 13189,13189
• Citation: 202 S.E.2d 622,157 W.Va. 548
• Court: West Virginia Supreme Court
• Parties: Arnold L. YOUNG v. Jerry O. ROSS. DUTCH MILLER CHEVROLET, INC. v. Jerry O. ROSS.

Page 622

202 S.E.2d 622

157 W.Va. 548

Arnold L. YOUNG v. Jerry O. ROSS.

DUTCH MILLER CHEVROLET, INC. v. Jerry O. ROSS.

No. 13189.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1974.

Decided Feb. 19, 1974.

Syllabus by the Court

1. 'The general rule, requiring the driver of an automobile to maintain a speed sufficiently slow to have such control of it that he can stop it within the distance in which he can plainly see an obstruction of danger, does not apply to a case where a dangerous situation which he has no reason to expect suddenly appears in front of his car.' Point 3, syllabus, Fleming v. Hartrick, 100 W.Va. 714 (131 S.E. 558).

2. The general rule that it is negligence as a matter of law to drive a motor vehicle at such a rate of speed that it cannot be stopped within the range of the driver's vision is subject to the exception of the sudden emergency doctrine.

3. Where the evidence relating to the question of sudden emergency is conflicting or where such evidence, though undisputed, is such that different inferences may properly be drawn therefrom by reasonable men, it is for the jury to determine whether the party relying on the sudden emergency doctrine was confronted with a sudden emergency; the nature and extent of the emergency; whether the emergency was created by him, in whole or in part; and whether he, in the emergency, conducted himself as a reasonably prudent person would have conducted himself in the same or like circumstances.

4. 'It is the peculiar and exclusive province of a jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed.' Point 2, syllabus, Skeen v. C and G Corporation, W.Va. (185 S.E.2d 493) (Decided by this Court December 14, 1971).

5. Where a motion for a directed verdict is made by a party at the trial of a case, all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed and the court must assume as true those facts which the jury may properly find from the evidence.

George A. Daugherty, Charleston, for appellant Ross.

Steptoe & Johnson, Edward W. Eardley, and Wayne A. Sinclair, Charleston, for appellee Young.

BERRY, Justice:

This is an appeal by Jerry Ross from a final order of the Circuit Court of Kanawha County entered June 25, 1971 wherein the Circuit Court denied Ross' petition for an appeal and supersedeas from a final judgment of the Common Pleas Court of Kanawha County entered December 23, 1971. The Common Pleas Court set aside the jury verdict of $40,000 in favor of Arnold Young and against Jerry Ross as to damages only but upheld the jury verdict as to the liability of Ross and further held that Ross could not recover against Young on Ross' counterclaim. Young and Dutch Miller Chevrolet originally brought suit against Ross for damages suffered as a result of an automobile crash in which Ross and Young were involved. Dutch Miller Chevrolet was the owner of the car Young was driving at the time of the accident and sought to recover from Ross the amount of the damage to the car. This Court granted Ross' appeal on January 31, 1972. Ross' motion for leave to move to reverse was granted on June 11, 1973, and on September 6, 1973 the case was continued generally and on January 15, 1974 the case was submitted for decision on the arguments and briefs filed on behalf of the respective parties. Subsequent to the granting of the appeal and prior to oral arguments in this Court, in the claims of Young and Dutch Miller Chevrolet against Ross were settled out of court.

The accident which precipitated the foregoing proceedings occurred on February 13, 1967 at approximately 9:15 p.m. At approximately 9:00 p.m. that evening Jerry Ross, who was an employee of the State Road Commission, received a call at his home informing him that there was a rock slide north of Pinch, West Virginia which was blocking or partially blocking Route 47. Ross was told to proceed to the slide area in his pick-up truck to secure the slide. The weather at the time of the accident was cloudy with patches of fog but apparently visibility was not impaired at the scene of the accident. The road was dry.

Ross, accompanied by his two teen-age sons, drove north on Route 47 to the scene of the slide and observed that the northbound lane was completely blocked and the southbond lane was partially blocked. Ross drove around the slide in the left hand lane, continued down the road several hundred feet until he could turn around. He turned around and approached the slide in the southbound lane, drove by the slide and pulled his truck into the northbound lane facing south. Ross testified he left his parking lights on and that his truck was parked at a slight angle in front of the slide which was about two and one-half feet at its highest point. Ross had several flares in the truck at the time of the accident.

Ross had just stepped out of the truck when his son told him that a car was approaching in the northbound lane. Ross got back into the truck but did not close the door. Ross testified he did not remember anything after that until Young's car crashed into the truck. One of Ross' sons testified that Ross turned his headlights on and off twice before Young's car collided with the truck. As Young crested a hill heading north he was apparently about 380 feet from Ross' truck and he testified he could see car lights in the atmosphere but denied he could see the actual headlights of Ross' truck. Counsel for the parties stipulated the accuracy of a map prepared by a civil engineer which was admitted into evidence and which indicated that Young, after reaching the crest of the hill, had an unimpeded view of the highway to Ross' truck for approximately 380 feet. On the other hand, Young's evidence was to the effect that because of slight dips in the road Young was not able to see the actual headlights of Ross' truck until he was almost upon the truck. Young testified he was driving about 45 to 50 miles an hour when he came over the crest of the hill and he slowed down one or two miles an hour as he approached Ross' truck. However, Young also testified that he didn't see the truck until he was about 50 feet from it and he was blinded by the lights on Ross' truck and that when he realized Ross' truck was in his lane and he saw the outline of the slide behind the truck, he immediately slammed on his brakes but it was too late to stop. At the place of the accident, the berm on the left side of the road driving north was very narrow and there was a steep embankment of which Young was aware when he made the decision to attempt to stop his car rather than try to maneuver around Ross' truck and the rock slide.

Two witnesses testified that they were driving north on Route 47 after the rock slide occurred but before Ross arrived on the scene and were able to stop their cars before hitting the slide. Both were traveling 30 to 35 miles an hour and one testified that he slammed on his brakes and stopped just in time to avoid hitting the rock slide.

Three witnesses who arrived at the scene shortly after the accident testified that they observed skid marks in the northbound lane and their estimates of the length of the marks ranged from 35 to 50 feet. However, the investigating state trooper testified that he did not find any skid marks.

As a result of the collision, Young sustained serious injuries including the loss of one eye and Ross was also injured.

Ross contends on this appeal that several prejudicial errors occurred during the trial. However, he relies primarily on the contention that the trial judge should have directed a verdict in his favor against Young and Dutch Miller Chevrolet in their original action against him. He also contends that the court erred in giving a sudden emergency instruction on behalf of Young under the facts of this case and that Ross was entitled to a sudden emergency instruction which was refused. Ross also assigned as error the giving of, or the refusal to give, several other instructions by the court, but these assignments were only referred to generally in his brief.

After the appeal was granted by this Court a written motion was filed advising the Court that the two cases against Jerry Ross had been settled and the motion prayed that the appeal be dismissed and that a deposit of $1800 for printing the record, which was made by the insurance carrier for Ross, be returned by the clerk of this Court. George Daugherty, who was representing Ross on Ross' counterclaim, moved that the appeal as to the counterclaim be heard and decided and not dismissed. The motion to return the $1800 deposit for...