Morris v. Parris
| Decision Date | 10 February 1931 |
| Docket Number | 6861. |
| Citation | 157 S.E. 40,110 W.Va. 102 |
| Parties | MORRIS v. PARRIS. |
| Court | West Virginia Supreme Court |
Submitted January 28, 1931.
Syllabus by the Court.
Phraseology of instruction must be considered in light of common experience; instruction will not be deemed prejudicial error though inaptly phrased, if thought subject stands out so that men of ordinary experience and understanding can readily grasp true meaning.
Phraseology of an instruction must be considered in the light of the common experience of men, and though such phrasing may be inapt, if the thought-subject stands out in such manner that men of ordinary experience and understanding will readily grasp the true meaning, the same being a correct statement of the law, and not be misled by another possible construction the giving of such instruction will not be deemed prejudicial error.
Each party is entitled to have his theory presented by proper instructions, where conflicting theories are presented by evidence.
"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. 301, 137 S.E. 747, 748.
Additional Syllabus by Editorial Staff.
Evidence warranted finding that driver of automobile colliding with several objects in attempt to avoid defendant, who was apparently turning left, was guilty of contributory negligence with respect to speed.
Error to Circuit Court, Kanawha County.
Action by Walter Morris against John W. Parris. Judgment for defendant, and plaintiff brings error.
Affirmed.
E. S. Bock and A. M. Belcher, both of Charleston, for plaintiff in error.
Payne, Minor & Bouchelle, of Charleston, for defendant in error.
Plaintiff seeks reversal of a judgment upon a verdict for defendant.
As plaintiff and defendant approached each other in their automobiles from opposite directions on the Charleston-Clendenin highway, the defendant started to turn his car off the highway to reach a filling station on his left, but after passing part of the way over to the left edge of the 16 foot concrete surface, he turned back to his own side of the road. The plaintiff, however, upon seeing the defendant's car veer to the left and being fearful that a collision would be unavoidable if he remained on the concrete, turned his machine from the road to the comparatively level ground on his right. As a result of so doing, his automobile collided with several objects in succession with consequent serious personal injuries to himself and considerable damage to his automobile. The alleged excessive speed of the plaintiff is charged by the defendant to have constituted contributory negligence and to have been the proximate cause of the accident. Upon the issue of fact arising on this defense, the jury was warranted in believing that if the plaintiff had not been running at very high speed, his automobile, as appears from the evidence would not have struck a loaded truck, weighing around 6,200 pounds parked with set brakes four or five feet from the edge of the concrete, with sufficient force to knock it forward twenty feet, and to carom from the truck into a store building about twelve feet away, and then not to stop until after it had crashed through a substantial wire fence a few feet from the building. We could not therefore hold that the verdict was against the evidence and that the court erred in overruling plaintiff's motion to set aside the verdict on that ground. The assignment of error involving this point is not well taken.
The remaining ground of error pertains to the instructions. It is said that there is inconsistency between the instructions on behalf of the plaintiff and those on behalf of the defendant and that certain of the defendant's instructions are inherently incorrect. On the question of inconsistency it becomes necessary to give attention to plaintiff's instructions as a background for consideration of defendant's. Plaintiff's instruction No. 1 told the jury that in a situation of sudden peril the law does not require of a person the same degree of care as of one who has had ample opportunity for full exercise of his judgment, and that if the jury believed from the evidence that because of the defendant's turning his car suddenly toward the left side of the road resulting in a situation wherein the plaintiff deemed himself to be confronted with immediate danger, and, in the exigency thereof, he drove his car off the hard surface of the highway for the purpose of avoiding a collision with the defendant and collided with a truck parked on the side of the highway and received serious injuries from such collision, the plaintiff was not guilty of contributory negligence and the jury should assess damages to him. No. 2 presented substantially the same propositions in different phraseology. No. 3 set forth the doctrine of last clear chance. It told...
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