The settlement entitled the plaintiffs to a judgment and, thus, the cause of action did not abate between settlement and final judgment. Id. at 882; see also Parker v. Parker, 319 A.2d 750, 751 (N.J. Super. Ct. App. Div. 1974) (husband's death after resolution of parties' dispute but before judgment did not abate divorce action because trial court had "made a definitive adjudication of the controversy, reflecting its conclusive determination that each party be granted a divorce"); Garrett v. Byerly, 284 P. 343, 358 (Wash. 1930) (concluding that cause of action does not abate when party dies after the verdict because party is "entitled to a judgment" at the time of his death (quoting Fitzgerald v. Stewart, 53 Pa. 343, 346 (1866))); Wilson v. Coop. Transit Co., 30 S.E.2d 749, 753 (W. Va. 1944) (negligence claim did not abate where the plaintiff died after verdict but before entry of judgment). ¶ 36 Undaunted, GTL contends that Casper was not entitled to a "final judgment" at the time of his death because the court had not yet computed attorney fees and prejudgment interest.
The settlement entitled the plaintiffs to a judgment and, thus, the cause of action did not abate between settlement and final judgment. Id. at 882 ; see also Parker v. Parker , 128 N.J.Super. 230, 319 A.2d 750, 751 (1974) (husband's death after resolution of parties' dispute but before judgment did not abate divorce action because trial court had "made a definitive adjudication of the controversy, reflecting its conclusive determination that each party be granted a divorce"); Garrett v. Byerly , 155 Wash. 351, 284 P. 343, 358 (1930) (concluding that cause of action does not abate when party dies after the verdict because party is "entitled to a judgment" at the time of his death (quoting Fitzgerald v. Stewart , 53 Pa. 343, 346 (1866) )); Wilson v. Coop. Transit Co. , 126 W.Va. 943, 30 S.E.2d 749, 753 (1944) (negligence claim did not abate where the plaintiff died after verdict but before entry of judgment). ¶ 36 Undaunted, GTL contends that Casper was not entitled to a "final judgment" at the time of his death because the court had not yet computed attorney fees and prejudgment interest.
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.
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.
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
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.
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.
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.
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
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: