Becher v. Spencer
| Decision Date | 19 September 1933 |
| Docket Number | 7659. |
| Citation | 170 S.E. 900,114 W.Va. 75 |
| Parties | BECHER v. SPENCER et al. |
| Court | West Virginia Supreme Court |
Submitted September 13, 1933.
Syllabus by the Court.
Each party is entitled to have his view of case, where based on evidence, presented to jury by proper instructions.
Refusal to submit to jury whether bus driver approaching pedestrian had reduced speed to 15 miles per hour as required by statute was error (Code 1931, 17-8-12).
"Where conflicting theories of a case are presented by the evidence each party is entitled to have his view of the case presented to the jury by proper instructions." Whitmore v Rodes, 103 W.Va. 801, 137 S.E. 747.
Error to Circuit Court, Kanawha County.
Action by Clarence A. Becher, administrator, against E. R. Spencer and another. Judgment for defendants, and plaintiff brings error.
Judgment reversed, verdict set aside, and case remanded.
Taylor & Taylor and Roderick G. Merrick, all of Charleston, for plaintiff in error.
R. E O'Connor and J. Howard Hundley, both of Charleston, for defendants in error.
MAXWELL President.
Plaintiff's decedent, Carl O. Becher, was struck and killed by a bus westwardly-bound at East Bank, Kanawha County, about eight thirty in the evening of November 4, 1932, as he walked eastwardly along his left-hand edge of a hard-surfaced highway. Defendant Spencer was the owner of the bus and defendant Hoke the driver. To a judgment for defendants based on verdict, plaintiff was awarded writ of error.
The plaintiff assigns as error the refusal of the trial court to give to the jury certain instructions tendered by him and the giving of certain instructions for the defendants over the plaintiff's objection. We perceive no prejudicial error in the court's action on any of these instructions, except plaintiff's instruction No. 2-a, refused. This instruction would have told the jury that if they believed from a preponderance of the evidence that plaintiff's decedent was walking along and upon the edge of the traveled portion of the highway, facing traffic, and that the driver of the bus in approaching, saw, or in the exercise of reasonable care and caution, could have seen the said decedent, it was the duty of the driver to reduce the speed of the bus so as not to exceed a rate of fifteen miles per hour, and that if the driver did not so reduce the speed of the bus, but approached said decedent at a greater rate of speed than fifteen miles per hour, and that the rate of speed at which the bus was traveling contributed proximately to the injury complained of, and that said decedent was without fault, the jury had the right to find that the said driver was guilty of negligence in the operation of the bus, and might find a verdict for the plaintiff.
Plaintiff bases his right to the instruction on the statute, Code 1931 17-8-12, whereof the pertinent provision reads: "Upon approaching any person walking in the traveled portion of any public highway, *** a person operating a motor vehicle or motorcycle shall reduce its speed so as not to exceed fifteen miles per hour. ***" It is not for the court to say whether a statute is reasonable; that is...
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