85 W. Va. 398
Decided January 27, 1920
West Virginia Supreme Court · decided 1920-01-27
<p>1. Negligence — Proof, and Charge on Supervening 'Negligence Proper.</p> <p>When in an action for damages for personal injuries the averments of the only count in the declaration, properly interpreted, amount to a general charge of negligence, and specific acts of negligence are also averred, the plaintiff can not be limited in his proof to the specific acts averred; and when the defendant by evidence introduces the defense of contributory negligence, the plaintiff may under such declaration offer evidence, and the jury may be instructed, if the evidence justifies it, on the theory of the supervening negligence of the defendant as the proximate cause of plaintiff’s injuries. Hawker v. B. & O. R. R. Co., 15 W. Ya. 628, distinguished, (p. 399)</p> <p>2. Street Railroads — “Immediately” In Instruction on Contributory Negligence in Starting Across Track Construed as Fairly Descriptive of Acts.</p> <p>The use of the word “immediately” in an instruction to the jury, intended to describe the co'nduct of the plaintiff in starting across the track of a street railway after seeing the approach of the car which did him the injury, there being no evidence of delay therein, is fairly descriptive of his acts, and the instruction being otherwise good in law is not thereby rendered erroneous, (p. 401).</p> <p>3. Damages — $5,000 for Permanent Injury from Breaking Collar Bone and Shoulder Blade and Injury to Right Side and Arm Not Excessive.</p> <p>The verdict for the plaintiff in this case for $5,000.00, can not, within the rules of law binding us, be said to be excessive, (p. 403).</p> <p>4. Interest — Judgment for Tort Should be for Amount Found by Jury With Interest From Date of Verdict.</p> <p>In actions of tort the judgment should be for the amount found by the jury with interest thereon from the date of the verdict, as provided by section 16, chapter 131 of the Code. Overruling and correcting the error in' Easter v. Virginian Railway Co., 76 W. Va. 383. (p. 403).</p> <p>(Williams, President, dissenting in part.)</p>
Cited by 2 later decisions — most recently March 1981
2 state decisions
Relies on Long v. Pocahontas Consolidated Collieries Co.
Good law ✅— No negative treatment on recordhow we know
Affirmed · Decided 1920-01-27
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¶1dissenting in part.)
¶2I dissent from so much only of the foregoing opinion as holds that interest on the judgment should run from the date of the verdict, for the same reason expressed in my dissenting opinion in the Long v. Pocahontas Consolidated Collieries Case 83 W. Va. 380, 98 S. E. 289. Properly construed, T do not think the statute cited in the opinion applies to judgments recovered in tort actions.