Walter Morris v. John W. Parris
| Decision Date | 10 February 1931 |
| Docket Number | (No. 6861) |
| Citation | 110 W.Va. 102 |
| Court | West Virginia Supreme Court |
| Parties | Walter Morris v. John W. Parris |
Walter Morris
v.
John W. Parris
Supreme Court of Appeals of West Virginia.
Submitted January 28, 1931.
Decided February 10, 1931.
1. Appeal and Error Trial
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.
2. Trial
"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 instruction." Whitmcre v. Rodes, 103 W. Va. 301.
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, for plaintiff in error. Payne, Minor & Bouchelle, for defendant in error.
[110 W.Va. 103]
Maxwell, Judge:
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 6200 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 be-
[110 W.Va. 104]
comes 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...
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