Zambelli v. House
Annotate this Case
September 1992 Term
__________
No. 20901
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JUDY A. ZAMBELLI, INDIVIDUALLY,
AND ON BEHALF OF AND AS NEXT FRIEND FOR
RONNIE H. COLLINS, JR.,
Plaintiffs Below, Appellants
v.
RALPH M. HOUSE AND MICHAEL HOUSE,
Defendants Below, Appellees
_______________________________________________
Appeal from the Circuit Court of Randolph County
Honorable Jack R. Nuzum, Circuit Judge
Civil Action No. 90-C-222
REVERSED AND REMANDED
______________________________________________
Submitted: September 23, 1992
Filed: December 14, 1992
J. Michael Benninger
Wilson, Frame & Metheny
Morgantown, West Virginia
Counsel for Appellants
David A. Sims
Wallace, Ross & Harris
Elkins, West Virginia
Counsel for Appellees
This Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "Upon a motion for a directed verdict, all reasonable
doubts and inferences should be resolved in favor of the party
against whom the verdict is asked to be directed." Syl. Pt. 5,
Wager v. Sine, 157 W. Va. 391, 201 S.E.2d 260 (1973).
2. "'"Upon a motion to direct a verdict for the defendant,
every reasonable and legitimate inference fairly arising from the
testimony, when considered in its entirety, must be indulged in
favorably to plaintiff; and the court must assume as true those
facts which the jury may properly find under the evidence.
Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W. Va. 85, 163 S.E. 767."' Point 1, Syllabus, Jenkins v. Chatterton, 143 W. Va.
250, 100 S.E.2d 808 (1957)." Syl. Pt. 1, Jividen v. Legg, 161 W.
Va. 769, 245 S.E.2d 835 (1978).
3. "'"When the evidence is conflicting or when the facts,
though undisputed, are such that reasonable men may draw different
conclusions from them, the questions of negligence and contributory
negligence are for jury determination. Point 1, Syllabus,
Sydenstricker v. Vannoy, 151 W. Va. 177, 150 S.E.2d 905."' Point
1, Syllabus, Kidd v. Norfolk & Western Rwy. Co., 156 W. Va. 296,
192 S.E.2d 890 (1972)." Syl. Pt. 2, Jividen v. Legg, 161 W. Va.
769, 245 S.E.2d 835 (1978).
Per Curiam:
Judy A. Zambelli and Ronnie H. Collins, Jr., appeal a July 31,
1991, decision of the Circuit Court of Randolph County which
granted a directed verdict in favor of the Appellees, Ralph M.
House and Michael House. The Appellants contend that the directed
verdict was inappropriate due to their presentation of sufficient
evidence of negligence to warrant a jury determination of the
issues. We agree and accordingly reverse and remand this case to
the circuit court for the submission of this matter to a jury.
I.
The underlying civil action arises from an April 26, 1990,
automobile accident on U.S. Route 250 south of Elkins, West
Virginia. According to the testimony of appellant Collins, he was
travelling south when appellee Michael House passed him and cut in
front of his vehicle, causing Collins to leave the roadway and
strike a guardrail.See footnote 1 Appellee Michael House contended that he was
not at the scene of the accident.
Subsequent to a trial on July 9 and 10, 1991, the jury was
unable to reach a verdict. The jury was then discharged, and a
mistrial was declared. By order dated July 31, 1991, the lower
court granted the Appellees' motion for a directed verdict. The
Appellants now contend that the trial court erred by granting the
directed verdict and by relying upon the judge's personal
observations of the accident scene in granting the motion for the
directed verdict.
While we do not specifically address the issue of the lower
court's personal observations or the reliance thereon, we base our
decision to reverse and remand upon the existence of sufficient
evidence to warrant a jury resolution of the facts.See footnote 2 The parties
in this case have adopted diametrically opposing and irreconcilable
positions on the issue of liability. The Appellants allege that
Michael House passed Ronnie Collins in a black pick-up truck and
ran him off the road.See footnote 3 The Appellants also provided two witnesses
who allegedly observed a black pick-up truck at the scene of the
accident. One of those witnesses for the Appellants, however,
admitted that he did not leave work until 3:30 p.m., the time at
which the accident allegedly occurred. The Appellees therefore
called his testimony into question and contended that he could not
have been at the scene of the accident by 3:30 p.m.
Michael House, while admitting that he does drive his father's
black pick-up, contends that he was at the home of Sarah Wilmoth at
the time the accident occurred and was nowhere near the scene of
its occurrence. Sarah Wilmoth supported Michael House's
contentions and stated that she remained with Michael House from
2:53 p.m. to 3:40 p.m. The Appellees also presented the testimony
of Shirley Weasenforth. Ms. Weasenforth's testimony that she was
the first person to arrive on the accident scene is in direct
conflict with the testimony presented by witnesses for the
Appellants. Upon presentation of the evidence, as briefly
summarized above, the jury was unable to reach a verdict, and a
mistrial was declared.
II.
In syllabus point 5 of Wager v. Sine, 157 W. Va. 391, 201 S.E.2d 260 (1973), we explained the following: "Upon a motion for
a directed verdict, all reasonable doubts and inferences should be
resolved in favor of the party against whom the verdict is asked to
be directed." Moreover, we stated the following in syllabus point
1 of Jividen v. Legg, 161 W. Va. 769, 245 S.E.2d 835 (1978):
"'Upon a motion to direct a verdict for
the defendant, every reasonable and legitimate
inference fairly arising from the testimony,
when considered in its entirety, must be
indulged in favorably to plaintiff; and the
court must assume as true those facts which
the jury may properly find under the evidence.
Syllabus, Nichols v. Raleigh-Wyoming Coal Co.,
112 W. Va. 85, 163 S.E. 767.'" Point 1,
Syllabus, Jenkins v. Chatterton, 143 W. Va.
250, 100 S.E.2d 808 (1957).
We also explained in syllabus point 2 of Jividen,
"'When the evidence is conflicting or
when the facts, though undisputed, are such
that reasonable men may draw different
conclusions from them, the questions of
negligence and contributory negligence are for
jury determination. Point 1, Syllabus,
Sydenstricker v. Vannoy, 151 W. Va. 177, 150 S.E.2d 905.'" Point 1, Syllabus, Kidd v.
Norfolk & Western Rwy. Co., 156 W. Va. 296,
192 S.E.2d 890 (1972).
The Appellees contend that the Appellants, as plaintiffs,
failed to establish a prima facie right of recovery. As we
explained in syllabus point 3 of Roberts v. Gale, 149 W. Va. 166,
139 S.E.2d 272 (1964), "[w]hen the plaintiff's evidence, considered
in the light most favorable to him, fails to establish a prima
facie right of recovery, the trial court should direct a verdict in
favor of the defendant." However, in construing the evidence in a
light most favorable to the Appellants, we must acknowledge the
following contentions made by the Appellants: Appellant Ronnie
Collins explains that he recognized Michael House and his black
pick-up truck; Collins contends that Michael House passed him and caused him to collide with the guardrail; and two witnesses, Terry
Atkinson and Jeffrey Menendez, claim to have seen a black pick-up
truck at the scene of the accident. While this evidence is
certainly contradicted by the evidence of the Appellees, such
contradiction does not nullify the Appellants' establishment of a
prima facie right of recovery and does not justify the granting of
a directed verdict. On the contrary, it does establish a set of
factual inconsistencies ripe for resolution by a jury.
We conclude that the lower court erred in granting the
directed verdict in light of the multitude of factual issues which
require jury resolution. The lower court's conclusion, as stated
in its final order, that the Appellants' evidence was less credible
than that of the Appellees did not justify its action in granting
a directed verdict. This is simply a matter of resolution of
conflicting versions of the story of an accident. It is exactly
the situation for which jury resolution is mandated. Thus, upon
remand, the evidence should be submitted to a jury for proper
resolution of the factual inconsistencies.
Reversed and remanded.
Footnote: 1Appellant Collins has alleged various permanent injuries,
including a right tibia /fibula fracture and medical expenses of
over $15,000.
Footnote: 2The appellants claim that the lower court erred by basing its
decision to any degree upon the trial judge's personal observation
of the accident scene. During the hearing on appellees' motion for
a directed verdict, the lower court indicated that it was relying,
at least to some extent, upon a personal visit to the scene after
trial. Specifically, the lower court explained as follows:
Well, the--and since this trial--twice I've
checked--Collins says that as he came out of
the Ward Road that he could see the House
truck on the Chenoweth Creek road, and you
cannot see from the Ward to the Chenoweth
Creek entry onto the 4-lane--I've checked it
twice since then.
Our decision that the lower court erred in granting this directed verdict is based upon the sufficiency of the evidence submitted. Therefore, we do not endeavor to address the issue of any compounding of that error which may have been created by the judge's reliance upon his personal observations or conclusions. Footnote: 3There was apparently no allegation that Michael House intentionally caused Ronnie Collins to leave the roadway.
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