Lois K. Dunning, Larry Dunning, an Infant, by Lois K. Dunning, His Next Friend, and Janet Dunning, an Infant, by Lois K. Dunning, Her Next Friend, Appellants, v. Pepsi-cola Bottling Co. of Beckley, Inc., a West Virginia Corporation, and Kenneth Keffer, Appellees, 336 F.2d 807 (4th Cir. 1964)

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US Court of Appeals for the Fourth Circuit - 336 F.2d 807 (4th Cir. 1964) Argued September 28, 1964
Decided October 2, 1964

Appeal from the United States District Court for the Southern District of West Virginia, as Beckley; John A. Field, Jr., Chief Judge.

W. A. Thornhill, III, and David T. Kennedy, Beckley, W. Va., for appellants.

Edward M. Payne, III, and W. H. File, Jr., Beckley, W. Va. (Scherer, Bowers, File & Hodson, Beckley, W. Va., on brief), for appellees.

Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges.


The plaintiffs-appellants seek to recover damages for personal injuries sustained in a collision between the automobile in which they were passengers and a truck owned by the corporate defendant and driven by its employee, Keffer. A jury trial resulted in a verdict for the defendants.

Principal assignments of error relate to the admission of certain evidence, the court's charge to the jury and refusal to charge as requested. We have examined the record in the light of the briefs and oral arguments presented on behalf of all parties to the controversy.

We conclude that this is a typical case in which there was a substantial disagreement as to facts, particularly with reference to the manner in which the accident occurred. Looking to the court's charge as a whole, we are of the opinion that the case was fairly presented to the jury and we are not persuaded that the asserted errors compel the direction of a retrial before another jury.