Wilson v. Transit Co.

12 Citing cases

  1. Young v. Duffield

    152 W. Va. 283 (W. Va. 1968)   Cited 30 times

    In this circumstance we do not believe that the action of the circuit court in reversing the trial court is supported by the record. See Wilson v. Co-operative Transit Company, 126 W. Va. 943, 30 S.E.2d 749; Hendricks v. Monongahela West Penn Public Service Company, 115 W. Va. 208, 175 S.E. 441; Flinn v. Henthorne, 114 W. Va. 807, 173 S.E. 882; Shipley v. Virginian Ry. Co., 87 W. Va. 139, 104 S.E. 297. When an appeal is taken from a judgment of a trial court setting aside a jury verdict it is incumbent upon the appellant to show error.

  2. Belcher v. N. W. Ry. Co.

    140 W. Va. 848 (W. Va. 1955)   Cited 11 times

    It is shown by the record that there is a conflict in the testimony introduced by the plaintiff and that introduced by the defendants, but the court having directed a verdict for the defendants, we must treat the evidence introduced by the plaintiff as true, together with all facts favorable to the plaintiff which may be inferred from such evidence. Nichols v. Coal Co., 112 W. Va. 85, 100 S.E. 868; Hambrick v. Spalding, 116 W. Va. 235, 179 S.E. 807; Fielder v. Cab Company, 122 W. Va. 522, 11 S.E.2d 115; Wilson v. Transit Co., 126 W. Va. 943, 30 S.E.2d 749; Webb v. Harrison, 127 W. Va. 124, 31 S.E.2d 686; Parsons v. Railroad Co., 127 W. Va. 619, 34 S.E.2d 334; Reed v. Janutolo, 129 W. Va. 563, 565, 42 S.E.2d 16; Stokey v. Railroad, 132 W. Va. 771, 55 S.E.2d 102; Laphew v. Bus Lines, 133 W. Va. 291, 55 S.E.2d 881; Perry v. Scott, 134 W. Va. 380, 59 S.E.2d 652; Frampton v. Consolidated Bus Lines, 134 W. Va. 815, 62 S.E.2d 126; Constr. Co. v. Coal Co., 135 W. Va. 656, 65 S.E.2d 94; Homes v. Power Co., 136 W. Va. 877, 69 S.E.2d 131. Treating that evidence in that manner for the purpose of this opinion and notwithstanding the conflict, we are required to say that the bell was not rung nor any whistle blown, as required by the statute, and that the engineer of the locomotive was not keeping a lookout for the automobile in which the plaintiff was riding.

  3. Montgomery v. Fay

    80 S.E.2d 103 (W. Va. 1954)   Cited 3 times

    We simply apply the rule in point 1 of the syllabus of Fielder, Administratrix v. Service Cab Co., 122 W. Va. 522, 11 S.E.2d 115, that: "Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence." This rule has been applied in Boyce v. Black, 123 W. Va. 234, pt. 1 syl., 15 S.E.2d 588; Wilson v. Co-Operative Transit Co., 126 W. Va. 943, 945, 30 S.E.2d 749; Adkins v. Raleigh Transit Co., 127 W. Va. 131, 135, 31 S.E.2d 775; Billy v. Powell, 133 W. Va. 278, 282, 55 S.E.2d 889; Laphew v. Consolidated Bus Lines, 133 W. Va. 291, 294, 55 S.E.2d 881; Frampton v. Consolidated Bus Lines, 134 W. Va. 815, 823, 62 S.E.2d 126; Spence v. Browning Motor Freight Lines, 138 W. Va. 748, 77 S.E.2d 806. We therefore take as true the evidence in this case, which tends to show that as Montgomery drove his truck past the place where the witness Purnell was entering Route No. 19, the truck was being driven at a speed of fifty miles an hour; and that, as the truck proceeded for a distance of approximately seven hundred feet to the brow of the hill, it was within Purnell's sight and was being operated over the brow of the hill with the wheels straddling the center line. Likewise we must take as true the evidence which tends to show that after the collision the Nash sedan came to a stop on the proper side of the center line. Under this evidence we simply hold th

  4. State ex rel. Bumgarner v. Sims

    139 W. Va. 92 (W. Va. 1953)   Cited 28 times
    In Bumgarner, the state Supreme Court enforced an award by the state court of claims and held that the state auditor's office had a "moral obligation" to compensate the plaintiff, who was negligently shot by the state's servant, the captain of the guards at a West Virginia penitentiary, acting in the scope of his employment.

    In point 1 of the syllabus in Fielder, Admx. v. Service Cab Co., 122 W. Va. 522, 11 S.E.2d 115, this Court held: "Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence." Boyce v. Black, 123 W. Va. 234, pt. 1 syl., 15 S.E.2d 588; Wilson v. Co-Operative Transit Co., 126 W. Va. 943, 945, 30 S.E.2d 749; Adkins v. Raleigh Transit Co., 127 W. Va. 131, 135, 31 S.E.2d 775; Billy v. Powell, 133 W. Va. 278, 282, 55 S.E.2d 889; Laphew v. Consolidated Bus Lines, 133 W. Va. 291, 294, 55 S.E.2d 881; Frampton v. Consolidated Bus Lines, 134 W. Va. 815, 823, 62 S.E.2d 126; Spence v. Browning Motor Freight Lines, 138 W. Va. 748, 77 S.E.2d 806. Though the doctrine of respondeat superior is not applicable to the State because of the State's immunity from suit under Article VI, Section 35, West Virginia Constitution, this Court has tacitly applied the rationale of the doctrine in the several cases in which declarations by the Legislature of moral obligations on the part of the State, arising from the negligence of its officers, agents and employees in the exercise of governmental functions, were held to be valid.

  5. Spence v. Motor Freight

    138 W. Va. 748 (W. Va. 1953)   Cited 15 times
    In Spence v. Browning Motor Freight Lines, 138 W. Va. 748, 77 S.E.2d 806 (1953), the witness denied making the prior statement and impeachment was permitted.

    Christie v. Mitchell, 93 W. Va. 200, 116 S.E. 715; Todorobak v. McSurley, 107 W. Va. 372, 148 S.E. 323; Shrimplin v. Simmons Auto Co., 122 W. Va. 248, 9 S.E.2d 49; Stone v. Rudolph, 127 W. Va. 335, 32 S.E.2d 742; Kelly v. Checker White Cab Co., 131 W. Va. 816, 50 S.E.2d 888. If this were a case involving mere negligence which proximately caused an alleged injury, the case would be one for jury determination, as there is a clear conflict in the evidence bearing on the question whether the collision occurred by reason of the plaintiff driving his truck across the white center line on the wrong side of the road into Merritt's oncoming truck, or whether Merritt's truck was caused to be driven across the center line on his wrong side of the road and into defendant's truck. Fielder v. Service Cab Co., 122 W. Va. 522, pt. 1 syl., 11 S.E.2d 115; Boyce, Admx. v. Black, 123 W. Va. 234, pt. 1 syl., 15 S.E.2d 588; Wilson v. Co-Operative Transit Co., 126 W. Va. 943, 945, 30 S.E.2d 749; Adkins v. Raleigh Transit Co., 127 W. Va. 131, 135, 31 S.E.2d 775; Billy v. Powell, 133 W. Va. 278, 282, 55 S.E.2d 889; Laphew v. Consolidated Bus Lines, 133 W. Va. 291, 294, 55 S.E.2d 881; Frampton v. Consolidated Bus Lines, 134 W. Va. 815, 823, 62 S.E.2d 126. This record, however, in our opinion, does not disclose such a state of facts that the jury could reasonably find from a preponderance of the evidence that defendant's driver Hatfield drove defendant's truck across the white center line and into Merritt's oncoming truck with a consciousness that injury would result from such act.

  6. Jones v. Jones

    64 S.E.2d 24 (W. Va. 1951)   Cited 4 times

    We think there is no merit in the contention of counsel for defendant. Code, 56-8-4, provides that "If, in any case of appeal, writ of error, or supersedeas, which is now or may hereafter be pending, there be at any time in an appellate court suggested, or relied on in abatement, the death of a party, or any other fact which, if it had occurred after verdict in an action, would not have prevented judgment being entered, as if it had not occurred, the appellate court may, in its discretion, enter judgment or decree in such case as if such death or such fact had not occurred." See Butcher v. Kunst, 65 W. Va. 384, 64 S.E. 967; Wilson v. Transit Co., 126 W. Va. 943, 30 S.E.2d 749. Questions remaining for decision relate to: (1) The action of the domestic relations court in permitting defendant to file his cross-bill in the suit for separate maintenance; and (2) in failing to enter a decree pro confesso upon the bill of complaint filed in the suit for separate maintenance.

  7. Raeder v. Sconish

    58 S.E.2d 265 (W. Va. 1950)   Cited 4 times

    In appraising the ruling of the trial court in directing a verdict in defendant's favor, we must apply the postulate contained in point 1 of the syllabus of Fielder, Admx. v. Service Cab Co., 122 W. Va. 522, 11 S.E.2d 115: "Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence." To like effect see Billy v. Powell, 133 W. Va. 278, 55 S.E.2d 889, 892; Boyce, Admx. v. Black, 123 W. Va. 234, pt. 1 syl., 15 S.E.2d 588; Wilson v. Co-operative Transit Co., 126 W. Va. 943, 945, 30 S.E.2d 749; and Adkins v. Raleigh Transit Co., 127 W. Va. 131, 135, 31 S.E.2d 775. Applying this rule, which is always applicable in a case where the trial court in a law action directs a verdict, we are of opinion that under a fair appraisal of the evidence in this case, the jury had the right to draw from the evidence every reasonable and legitimate inference favorable to plaintiff and fairly arising from the evidence; and, further, that it was the prerogative of the jury, and not of the trial court, to solve whatever conflict is portrayed by this record. That being so, we are of opinion that if this case had been submitted to the jury, it would have had the right to find that defendant was driving the Sconish car at an excessive, unreasonable, and dangerous rate of speed in the circumstances, without regard to reasonable control as it approached the standing bus; and that decedent was struck in the eastern lane of the highway two or three steps, or six to nine feet, east of the center line. S

  8. Laphew v. Bus Lines

    133 W. Va. 291 (W. Va. 1949)   Cited 24 times

    In Adkins v. Raleigh Transit Co., 127 W. Va. 131, 135, 31 S.E.2d 775, this Court held: "In view of the jury's resolving this conflict in plaintiff's favor, we must, in the appraisal of this case, as every trial court should do in the consideration of a motion for a directed verdict [or a motion to set aside a verdict], entertain every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, and assume as true those facts which the jury may properly find under the evidence." To the same effect see Hambrick v. Spalding, 116 W. Va. 235, 179 S.E. 807; Fielder, Admx. v. Service Cab Co., 122 W. Va. 522, 11 S.E.2d 115; Boyce v. Black, 123 W. Va. 234, 15 S.E.2d 588; Wilson v. Co-operative Transit Co., 126 W. Va. 943, 945, 30 S.E.2d 749. Guided by this rule, we are at liberty to state the facts in the following manner:

  9. Billy v. Powell

    133 W. Va. 278 (W. Va. 1949)   Cited 10 times

    As the verdict of the jury was in plaintiff's favor, we must, in the statement and the appraisal of the facts portrayed by this record, entertain every reasonable and legitimate inference favorable to plaintiff fairly arising from the evidence, considered as a whole, and assume as true those facts which the jury may properly find under the evidence and this assumption requires that any conflict in the evidence must be resolved in plaintiff's favor. Fielder v. Service Cab Co., 122 W. Va. 522, pt. 1 Syl., 11 S.E.2d 115; Boyce, Admx. v. Black, 123 W. Va. 234, pt. 1 Syl., 15 S.E.2d 588; Wilson v. Cooperative Transit Co., 126 W. Va. 943, 945, 30 S.E.2d 749; Adkins v. Raleigh Transit Company, 127 W. Va. 131, 135, 31 S.E.2d 775. A short time before four o'clock on the afternoon of March 25, 1948, plaintiff and his companion, Robert Snider, bought bus tickets from the bus agency in Grantsville, plaintiff's ticket purported to entitle him to ride on the bus from Grantsville in Calhoun County to Jackson's Store in that county.

  10. Reed v. Janutolo

    42 S.E.2d 16 (W. Va. 1946)   Cited 6 times

    J. F. Reed, Sheriff, Administrator of the Estate of Harry Luther Plumb, deceased, brought this action in trespass on the case in the Circuit Court of Fayette County against C. G. Janutolo and S.C. Cappellari, trading and doing business as Janutolo Company, to recover damages for the alleged wrongful death of Harry Luther Plumb. This writ of error is prosecuted to a judgment in the amount of four thousand dollars based upon a jury verdict rendered against the defendants. In Fielder, Admx. v. Service Cab Company, 122 W. Va. 523, 11 S.E.2d 115, and Wilson v. Cooperative Transit Company, 126 W. Va. 943, 945, 30 S.E.2d 749, this Court held, as stated in point one, syllabus of the Fielder case: "Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence." And as stated in the body of the opinion of the last-mentioned case: "This rule ex necessitate should guide us in stating the facts and inferences upon which this opinion is based.