Workman

CHARLESTON –- The West Virginia Supreme Court has reversed a Brooke County judge's decision to give a man injured in a car wreck a new trial.

In an opinion filed Tuesday, the justices unanimously sided with Mark Smith, a man who was found not negligent in a 2004 car wreck on Washington Pike.

Smith was sued by Wesley Cross, a man who was injured as a passenger of the other car involved in the wreck.

According to court records, the wreck occurred as both Smith and a vehicle being driven by James Yost were traveling westbound on the two lane road that leads from Wellsburg to the Pennsylvania state line.

Smith was making a left-hand turn into a friend's driveway just as Yost was passing him in the eastbound lane when the vehicles collided.

Cross, in his civil suit against Smith, said Smith didn't use his turn signal and that Yost was passing in a legal passing zone.

Smith, and an investigating police officer, disputed that Yost was passing legally. Smith said he looked in his rearview and side mirrors and didn't see Yost, but he couldn't explain why he didn't see Yost coming.

While Smith contended he used his turn signal, the investigating officer said he did not.

In 2007, Brooke Circuit Judge Martin J. Gaughan granted Cross a new trial, finding that the issue of whether Smith "effectively" looked for passing vehicles when he made the turn.

"I am quite concerned on the looking effectively part of this case," Gaughan said in ordering a new trial. "You know, my recollection of the testimony concerning the looking is pretty much what (one of Cross's lawyers) put in his memorandum. That your client said that he looked in his mirror, he didn't see him, and he had no explanation. So I'm concerned that there is no evidence in the case from which the jury could determine whether he looked effectively or not."

Justice Margaret Workman, in writing for the majority, said the court believes the jury came to a proper conclusion about the facts in reaching its verdict.

"At the outset, we note that in resolving the underlying questions in favor of Mr. Smith ... the jury's verdict may be explained by assuming that they found that Mr. Smith did slow his vehicle and signal prior to making his left-hand turn, that Mr. Yost was passing Mr. Smith's vehicle in a no passing zone, and that Mr. Smith did look effectively before attempting his left-hand turn and, thus, was not negligent," Workman wrote.

"These determinations were clearly jury issues and the finding that Mr. Smith was not negligent was consistent with his testimony at trial. He testified that he slowed his vehicle prior to attempting the turn, that he looked in his rearview and side-view mirrors, and that he did not see Mr. Yost's vehicle prior to the collision."

Supreme Court case number: 34147

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