Yuncke v. Welker

Citation36 S.E.2d 410
Decision Date04 December 1945
Docket NumberNo. 9730.,9730.
CourtSupreme Court of West Virginia

36 S.E.2d 410


No. 9730.

Supreme Court of Appeals of West Virginia.

Dec. 4, 1945.

[36 S.E.2d 411]
Syllabus by the Court.

1. In an action to recover damages for personal injuries caused by the alleged negligence of the defendant, it is the peculiar province of the jury to determine the questions of negligence and contributory negligence, when the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them.

2. When an action for the recovery of damages for personal injuries, involving conflicting testimony and circumstances upon the questions of negligence and con tributory negligence, has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence, or without any evidence to support it.

3. In an action for personal injuries, the damages are unliquidated and indeterminate in character, and the assessment of such damages is the peculiar and exclusive province of the jury.

4. The verdict of a jury in an action for personal injuries will not be set aside as excessive unless it is unsupported by the evidence, or is so large as to indicate that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.

5. Whether evidence offered is too remote to be admissible upon the trial of a case is for the trial court to decide in the exercise of a sound discretion; and its action in excluding or admitting the evidence will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.

6. Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.

Error to Circuit Court of Ohio County.

Action by William Yuncke against W. P. Welker, to recover for injuries sustained by plaintiff who was struck by defendant's automobile. To review a judgment for plaintiff, defendant brings error.


Tom B. Foulk, of Wheeling, for plaintiff in error.

Handlan, Garden, Matthews & Hess, of Wheeling, for defendant in error.


Upon this writ of error the defendant seeks the reversal of an adverse judgment for $5,175 entered by the Circuit Court of Ohio County upon the verdict of a jury in the trial of an action to recover damages for alleged personal injuries prosecuted by the plaintiff in that court.

The judgment is assailed in this Court on three principal grounds: (1) The defendant was not negligent; (2) the plaintiff was

[36 S.E.2d 412]

guilty of contributory or concurrent negligence barring recovery; and (3) the verdict is excessive. The defendant assigns a number of errors.

The plaintiff, William Yuncke, a carpenter by occupation, then seventy-one years of age, about 8 o'clock on the morning of October 11, 1943, while on his way to work, was walking on a public highway known as Bethany Pike, which extends through Greggsville, a suburb of Wheeling, in Ohio County, West Virginia, in a westerly direction toward its junction with another highway referred to in the evidence as Potomac Road. He had been walking on the southerly side of the road near a wire barrier which separates the edge of the road from a nearby ravine through which runs a small stream of water. There is no sidewalk at that point. Between the fork of the pike, which is formed by its junction with Waddles Run Road to the east, and Potomac Road on the west, Brown Street, a highway approximately 15 feet in width, enters the pike from the north. On the north side of the pike there is a sidewalk four feet wide which extends west from Brown Street to the intersection of Potomac Road with the pike. The plaintiff had reached a point on the south side of the pike about three feet from its southern edge when he started to cross to the north side to continue west on the sidewalk. He testified that before doing so he stopped and looked or glanced both east and west on the pike, and seeing and hearing no automobile, he started directly across the road which, at that point, is 18 feet, 9 inches in width. He was walking at a medium gait. About 227 feet east of that point, and at the entrance of Waddles Run Road to the pike, the pike turns abruptly to the north and then continues in an easterly direction on an ascending grade.

The automobile of the defendant, as it approached the entrance of Brown Street to the pike, and in which the defendant was riding in the front seat with his seventeen year old son, who was operating it at the time, was traveling west on the pike, in the same direction in which the plaintiff had been walking before he started to cross the pike from the south to the north side. The defendant's son had had only slight experience in driving the automobile and had driven it only once before on that section of the road. At a point on the pike variously fixed by witnesses at from 4 to 33 feet west of the entrance of Brown Street, the automobile struck the plaintiff when he was at or near and about to step upon the sidewalk on the northern side of the pike, knocked him down, passed over one of his legs and continued in motion for a distance of from 14 to 41 feet beyond or west of the point of collision before it was stopped.

The plaintiff was injured in his head, chest, back and legs. He sustained a deep cut on his head, which bled freely and left blood stains in the road at a point about three feet south of the sidewalk and about 18 feet west of the Brown Street intersection. He had contusions and abrasions on the right side of his chest, skin abrasions on his arms and legs and suffered pain in his right knee, both legs, his right chest and his back. He experienced severe shock but he sustained no fractures. Soon after the collision he was taken to a hospital where he remained and was treated for his injuries for twenty-two days.

When the automobile was brought to a stop the plaintiff was lying in the road on his left side with his face to the west. His feet were from six inches to two feet from the northern curb at the sidewalk. His head, pointing toward the center of the road, was about three and one-half feet from its northern edge. Before it struck the plaintiff the automobile mounted the curb at or near the Brown Street intersection and continued partly on the sidewalk and partly on the road for about 60 feet, its right wheels being about the center of the four foot walk. It was traveling in that position when it came in contact with the plaintiff. The speed of the automobile at or shortly before the collision was estimated by the various witnesses at from 10 to 30 miles per hour, and the plaintiff was walking at the rate of from two to three miles per hour.

The evidence as to the manner in which the collision occurred is in sharp conflict. The plaintiff did not see the automobile before it struck him. He heard no sound of a horn and no warning of the approach or the presence of the automobile. The defendant, whose occupation is that of a trust officer for a Wheeling Bank, and his son, the driver, the only occupant of the automobile, are the only participants who observed the collision and saw all the acts of the persons involved in it. The defendant's son was in military service at the time of trial and he did not testify.

[36 S.E.2d 413]

The defendant testified, in substance, that he first saw the plaintiff and that his son sounded the horn of the automobile when it was 125 feet east of the plaintiff while he was walking west on the south side of the pike; that the plaintiff was then about 125 feet from the place at which he was struck by the automobile; that the speed of the automobile, when the defendant first saw the plaintiff, was about 15 miles per hour; that the plaintiff gave no indication that he heard the horn; that the plaintiff continued to walk on the creek or south side of the road; that he left that side of the road about seven feet beyond or west of Brown Street, when the automobile was within a few feet of him, and darted directly across the road toward the sidewalk; that the left front part of the automobile struck him; that the speed of the automobile was then 15 miles per hour; that the automobile was swerved to the right to avoid striking him and went upon the sidewalk; and that the automobile continued to go forward about 25 feet after it struck the plaintiff. The defendant also testified that the plaintiff gave no indication that he was going to cross the road before he suddenly started to do so; that there was no change in the plaintiff's gait; and that the plaintiff did not stop walking when he turned to the right in the act of crossing the pike. The defendant further testified that during the afternoon of the day the collision occurred he talked with the plaintiff at the hospital and that the plaintiff then told him that he did not hear the automobile horn and did not look before crossing the road. The plaintiff denied that he made these statements.

The evidence in behalf of the plaintiff is contradictory of the defendant's version of the way in which the collision occurred. The plaintiff produced as witnesses several boys and girls of high school age who were either near the intersection of Potomac Road and the pike on the north side of the pike, or on the opposite side of the pike near a bridge. All of them, at the time, were west of the point of collision and within sight of it. Most of them either heard or saw the automobile strike the plaintiff. None of them testified that the automobile horn was sounded. Some of them said they did not hear any sound of the horn, and...

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