Yates v. Mancari , 153 W. Va. 350 ( 1969 )

Haymond, President:

The plaintiffs, Mildred Yates and Carl Yates, instituted this action in the Circuit Court of Jackson County to recover damages from the defendants, Louise Mancari and her husband Henry Mancari, for personal injury suffered by Mildred Yates, hereinafter sometimes referred to as the plaintiff, when she was struck by an automobile operated by Louise Mancari, hereinafter sometimes referred to as the defendant. The jury returned verdicts against the Mancaris in favor of Mildred Yates in the sum of $5,000.00 and in favor of Carl Yates in the sum of $2,500.00 and on application of the defendants this Court granted this appeal and supersedeas on July 8, 1968.

The accident occurred on November 13, 1963, on Gibbs Street in Ravenswood, West Virginia, at approximately 5:00 p.m. Gibbs Street as shown by the evidence is 21.4 feet wide. A tractor trailer, the width of which is not shown in the record, was parked along the north curb of Gibbs Street in close proximity to a building used as a laundromat. According to Mildred Yates the weather was misty and the streets were damp from the mist. She testified that she had been to the laundromat where she was employed to take care of some business and was returning to her home which required her to cross Gibbs Street in a southerly direction. She states: “I came to the door; I looked up and down Gibbs Street; I could see, you know, out the door pretty good ways down toward Route 2; then I came down on the pavement; I looked again, but there was some view shut off by the trailer; I looked up and down the street; I looked up Gibbs Street, up and down; I turned around, took two steps, turned around; as I took two steps, looked down Gibbs Street and Mrs. Mancari’s car was right upon me.” She further testified that she was approximately twenty-five feet to the rear of the tractor trailer at the time she last looked up and down Gibbs Street and was struck on her right leg by the left bumper of the Mancari car. A motion for a directed verdict in favor of the defendants at the conclusion of plaintiffs’ evidence was overruled.

For the defendants Louise Mancari testified that she was proceeding in an easterly direction on Gibbs Street at a speed of about fifteen miles an hour; that the weather was “half rain, half snow”; that her headlights were burning and that the streets were damp. She further states that she was looking straight ahead but did not see Mildred Yates until she stepped from behind the tractor trailer and that Mildred Yates was about two feet to the rear of the trailer when she stepped out and had stepped “two or three feet” from the rear of the truck when the automobile struck her. The defendants again moved for a directed verdict in their behalf at the conclusion of all the evidence which motion was overruled and as heretofore stated the jury returned verdicts in favor of the plaintiffs.

Errors assigned in this Court are the sufficiency of the evidence, the overruling of the motions for directed verdicts, and the giving and the refusal of certain instructions.

The initial assignment of error to be considered in this case is whether, under the evidence, the defendant was guilty of negligence which was the proximate cause of the injury to the plaintiff, or the plaintiff was guilty of negligence which contributed proximately to such injury. If this opinion is to serve its purpose a more detailed description of the scene of the collision is necessary. Gibbs Street in the town of Ravenswood runs from east to west intersecting on the west with Route 2 which runs north and south along the Ohio River at that point. 312 feet from Route 2 Virginia Street intersects Gibbs Street, it being a north-south street that ends at its intersection with Gibbs. The area of the scene of the accident is shown by a plat, which was prepared by a registered civil engineer, and is made a part of the record by stipulation of the parties. To the north of the intersection of Gibbs and Virginia Streets and 14V2 feet from the north curb of the intersection is the laundromat building. The plaintiff testified that she left that building from the east door, there being two doors facing Gibbs Street, and at that point she would be almost opposite the east side of Virginia Street where it intersects with Gibbs Street. Although it is agreed by all witnesses who testified that a truck was parked on the north side of Gibbs Street near the intersection, the rear part being near the intersection with Virginia Street, no witness testified as to the truck’s dimensions. The attorneys apparently assumed from questions that were asked that it was eight feet wide, that being the maximum permitted by law in this State. There is some contradiction in the testimony of the plaintiff as to where she was struck with reference to the rear of that truck. In discovery testimony she apparently indicated that she was one to two feet to the rear of it while at the trial she unequivocally stated that she was twenty-five feet to the east of that vehicle. A careful study of the plat shows that if the plaintiff came out of the east door of the front of the laundromat building and was going to her home, there being no contradiction as to that, she would have gone out of her way to the west if she went to within four feet of the rear of the truck to cross Gibbs Street. If she were attempting to cross Gibbs Street twenty-five feet to the rear of the truck she would be upon a direct route to her home.

Actually there is not much conflict in the testimony of the plaintiff and the defendant as to the plaintiff’s position in Gibbs Street when she was struck except as to the distance from the rear of the truck where the plaintiff was struck. This question was asked the plaintiff and she made the following answer: “Q. If you were to imagine an imaginary center line on Gibbs Street, Mrs. Yates, at the moment you were struck, on which side of that center line would you have been? A. I was next to the laundromat.” These questions were asked the defendant on direct examination to which she made the following answers: “Q. What did you do when she came from behind this trailer and out about two feet into the path of your car? A. I applied my brake instantly. Q. How far did your car travel to the point where it came to rest? A. Approximately three to five feet. Q. Was your car still in the intersection when it came to rest, stopped after the accident? A. Yes, sir.” (Italics supplied.) If the plaintiff made a case of primary negligence which was the proximate cause of the plaintiff’s injury and the defendant relied upon contributory negligence as a defense, the burden was upon her to prove such contributory negligence by a preponderance of evidence. But even if the width of the truck was not proved and if it be assumed that it was of the maximum width provided by law in this State the testimony of both the female plaintiff and the female defendant placed the point of contact on the side of the highway near the truck and which was used by the plaintiff after leaving the laundromat building and across an imaginary center line of the lane of traffic in which the law requires a motorist to proceed particularly when in or approaching an intersection. Code 17C, Article 7, Section 1, as amended, and 17C, Article 7, Section 6 (2), as amended.

Upon cross-examination the plaintiff was asked this question and made this answer: “Q. Then this accident occurred, according to your recollection, about a foot or foot and a half south of the south side of the trailer, is that right? A. Yes.” Upon cross-examination the plaintiff was also asked this question and made this answer: “Q. As a matter of fact, she stopped right in the middle of the street, did she not? A. No. She was over on the side towards the laundromat.” Again, even assuming that the truck or trailer was eight feet in width, the undisputed evidence in this case shows that the plaintiff was struck in the right part of her body by the left front fender of the defendant’s oar while plaintiff was in the north traffic lane of Gibbs Street. Furthermore the plaintiff was asked if she saw Louise Mancari just before she was struck, she stated that she did 'and that Louise Man-cari was “looking out” Virginia Street which is the street where Mildred Yates lived and which she was preparing to enter from Gibbs Street when she was struck by the automobile driven by Louise Mancari. Louise Mancari denied that statement by Mildred Yates, equivocally at first, but upon being asked another question stated “I was looking straight ahead.”

It is the view of this Court that there was testimony before the jury from which it could have found verdicts for the plaintiffs as it did and that it was not reversible error for the trial court to submit the case to the jury. This case is clearly distinguishable upon its facts from that line of decisions of this Court wherein it has been held that a pedestrian was guilty of contributory negligence as a matter of law where he had suddenly stepped from the curb into the defendant driver’s lane of traffic even though the court considered the defendant driver guilty of negligence. Many of those cases are cited in Bower v. Brannon, 141 W. Va. 435, 90 S. E.2d 342.

In the very recent case of Sydenstricker v. Vannoy, 151 W. Va. 177, 150 S. E.2d 905, this Court reasserted and reaffirmed its holding in many cases, several of which are cited in the opinion in the Sydenstricker case to the effect that a pedestrian lawfully in a public highway may rely upon the exercise of reasonable care by drivers of motor vehicles traveling upon such highway to avoid injuring such pedestrian. Failure to anticipate omission of such care does not render the pedestrian negligent. This case is clearly distinguishable, upon the facts, from Slater v. Shirkey, 122 W. Va. 271, 8 S. E.2d 897, in which this Court set aside the judgment of the trial court upon a jury verdict for the plaintiff upon the ground that the evidence showed as a matter of law that plaintiff’s decedent was guilty of contributory negligence. On that point, discussing facts and conclusions that the plaintiff was guilty of contributory negligence as a matter of law, the opinion in the Slater case contains these statements:

“As will be noted, the vital question is whether the decedent passed the rear end of the truck, and stepped into the path of approaching traffic at a time when any effort on the part of himself or the approaching automobile to avoid an accident was futile. We think there can be no doubt that this question must be answered in the affirmative. While there may be slight variations in the statements of the eye-witnesses as to what occurred, they unite in saying that the decedent walked from behind the parked truck into the highway, and after he had reached a point about the middle thereof looked in the direction of the approaching Shirkey car,- and then leaped in its path and was struck. The testimony on this point seems to us to be clear and convincing, and we cannot follow the contention of counsel for the plaintiff that it creates confusion as to what actually occurred. We are impressed with the fact that it is simply a case where the deceased came from behind the truck into the path of a moving automobile without taking the precaution to look for approaching cars, and thereby lost his life. We do not believe the testimony raises any doubt as to what occurred, and there being no such doubt the question of whether or not the decedent was guilty of contributory negligence is one of law for the court.

“The case before us is not complicated by elements which might lead the court to deny the existence of contributory negligence, or to hold that the question of its existence was for the jury. We find nothing in the case at bar except a plain act of negligence on the part of the decedent in stepping from behind a parked truck in the path of approaching traffic.”

Under the evidence in this case, unlike that in the Slater case, the questions of negligence and contributory negligence were questions for the jury. This Court has consistently held that when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for jury determination. Sydenstricker v. Vannoy, 151 W. Va. 177, 150 S. E.2d 905, and the many cases cited in the opinion in that case.

The trial court committed reversible error when over objection it gave to the jury, at the instance of the plaintiff, instructions Nos. 5 and 7. The jury could have understood by the phrase “the evidence” contained in those instructions to mean the evidence in behalf of the defendant rather than all of the evidence. The instructions were not clear in that regard as this Court has held that such an instruction must be. In Jackson v. Cockill, 149 W. Va. 78, 138 S. E.2d 710, this Court said: “It is true that the burden of proving contributory negligence rests on the defendant, but the jury may look to all of the evidence offered by both parties in determining whether or not the plaintiff’s decedent is guilty of contributory negligence. Barrickman v. Marion Oil Co., 45 W. Va. 634, 646, 32 S. E. 327; Melton v. Chesapeake and Ohio Railway Co., 71 W. Va. 701, 78 S. E. 369. In other words, the burden to show contributory negligence in such cases rests upon the defendant unless it is disclosed by the plaintiff’s evidence or may be fairly inferred by all of the evidence and circumstances surrounding the case. 13 M. J., Negligence, §56; Mullens v. Virginian Railway Company, 94 W. Va. 601, 119 S. E. 852; Leftwich v. Wesco Corporation, 146 W. Va. 196, 119 S. E.2d 401.” In point 6, syllabus, Leftwich v. Wesco Corporation, 146 W. Va. 196, 119 S. E.2d 401, is this language: “Contributory negligence on the part of the plaintiff is an affirmative defense. There is a presumption of ordinary care in favor of the plaintiff, and where the defendant relies upon contributory negligence, the burden of proof rests upon the defendant to show such negligence unless it is disclosed by the plaintiff’s evidence or may be fairly inferred by all of the evidence and circumstances surrounding the case.”

The action of the circuit court in giving, over the objection of the defendant, Instructions Nos. 1, 3, 6 and 12, offered by the plaintiff, constituted reversible error in that each of those instructions, which may be characterized as permissive, misstates the law, tends to confuse and mislead the jury, and fails to negative the defense of contributory negligence which is relied on by the defendant.

In telling the jury, as each of those instructions does, in substance, that if the jury believes from a preponderance of the evidence that certain specified acts or conduct of the defendant constituted negligence and that such negligence was the sole proximate cause of the injury to the plaintiff, the jury may find for the plaintiff, each instruction contains an utterly incorrect statement of law. The word “sole” as a modifier of proximate cause adds little or nothing to proximate cause without such modifier. See El Paso Electric Company v. Sawyer, Texas Court of Civil Appeals, 291 S. W. 667. The designation proximate cause or sole proximate cause, in law, means the same thing. Whether the cause of the injury is characterized as the sole proximate cause, or the proximate cause, the proximate cause of an injury is the efficient, principal, superior or controlling agency from which springs the harm as contradistinguished from those causes which are merely incidental or subsidiary to such efficient, principal, superior or controlling cause and the proximate cause may consist of one or more than one negligent act of causation by one or more persons which produces the injury. Though difficult of definition, the proximate cause of an injury, without the use of the word “sole,” has been defined by this Court as “the last negligent act contributing to the injury and without which the injury would not have occurred” and the proximate cause of an event as “that cause which in actual sequence, unbroken by any independent cause, produces an event and without which, the event would not have occurred.” See Dunning v. Barlow and Wisler, Inc., 148 W. Va. 206, 133 S. E.2d 784; Hartley v. Crede, 140 W. Va. 133, 82 S. E.2d 672; Matthews v. Cumberland and Allegheny Gas Company, 138 W. Va. 639, 77 S. E.2d 180; Webb v. Sessler, 135 W. Va. 341, 63 S. E.2d 65; Twyman v. Monongahela West Penn Public Service Company, 118 W. Va. 330, 191 S. E. 541; Estep v. Price, 93 W. Va. 81, 115 S. E. 861; Anderson v. Baltimore and Ohio Railroad Company, 74 W. Va. 17, 81 S. E. 579, 51 L.R.A., N. S., 888; Schwartz v. Shull, 45 W. Va. 405, 31 S. E. 914. In Divita v. Atlantic Trucking Company, 129 W. Va. 267, 40 S. E.2d 324, the opinion contains these statements: “The term proximate cause has been defined as that cause * * without which the accident would not have occurred * * *.' Anderson v. Railroad Co., 74 W. Va. 17, 19, 81 S. E. 579; Scott v. Engineering Co., 117 W. Va. 395, 398, 185 S. E. 553; Miller v. Douglas, 121 W. Va. 638, 5 S. E.2d 799.” In Lilly v. Taylor, 151 W. Va. 730, 155 S. E.2d 579, quoting from Stuck v. Kanawha and Michigan Railway Company, 76 W. Va. 453, 86 S. E. 13, this Court said: “The proximate cause of an injury is the superior or controlling agency from which springs the harm, as con-tradistinguished from those causes which are merely incidental or subsidiary to such principal and controlling cause.”

“Separate and distinct acts of negligence of two or more persons constitute the proximate cause of an injury when they continue in unbroken sequence until the injury occurs and directly and immediately contribute to and are the efficient cause of the injury.” Point 3, syllabus, Wilson v. Edwards, 138 W. Va. 613, 77 S. E.2d 164.

In all the foregoing definitions of proximate cause, which may be considered as typical, the definition applies to the proximate cause and in none of them is there any suggestion or intimation that the definition deals with or relates to proximate causes. Proximate cause, regardless of how defined, is always spoken of as the proximate cause, not the proximate causes. It necessarily follows that the proximate cause is the sole proximate cause and that contributory negligence contributes to and becomes a part of such proximate cause but is not the proximate cause. If the negligence of the plaintiff is the proximate cause of the injury, instead of a cause proximately contributing to such injury, the plaintiff is not guilty of contributory negligence but instead is guilty of primary negligence, for there can be no contributory negligence of a plaintiff unless the defendant is guilty of negligence which is the proximate cause of the injury.

The difference between proximate cause and contributory negligence is pointed out clearly in the opinion of this Court in Shaw v. Perfetti, 147 W. Va. 87, 125 S. E.2d 778, in this language: “The contributory negligence must contribute proximately and not indirectly before it becomes a bar to recovery on the part of a plaintiff. However, it is not necessary in an instruction relating to contributory negligence to state that but for it there would have been no accident, or in other words, that the contributory negligence was the proximate cause. After a jury has been instructed that the plaintiff can recover if they find the defendant guilty of negligence which is the proximate cause of the injury, it is only necessary for the defendant to show that the negligence of the plaintiff contributed to the injury, and for the court to instruct the jury that such contributory negligence would bar plaintiff’s recovery.

“This question is discussed in 13 M. J., Negligence, §29, wherein it is stated: ‘It is not necessary to the defense of contributory negligence to show that but for it the accident would not have occurred. It is enough to show that the negligence of the plaintiff contributed to the injury. The question to be determined is not whether the plaintiff’s negligence caused, but whether it contributed to the injury of which he complains.’ ”

To instruct a jury that a plaintiff, who is not shown to be not guilty of contributory negligence, may recover from a defendant whose negligence is the proximate cause of the injury of which the plaintiff complains is a palpable misstatement of law. The word “sole” before proximate cause does not negative or exclude contributory negligence upon the part of the plaintiff. Merely to refer to the negligence of the defendant as the sole proximate cause of the injury to the plaintiff not only does not negative contributory negligence upon the part of the plaintiff but tends to cause the jury to ignore or to fail to consider whether the plaintiff is or is not guilty of contributory negligence. By failing to negative contributory negligence each of the foregoing challenged instructions, in effect, tells the jury, by implication, that a plaintiff whose negligence proximately contributed to his injury may nevertheless recover from a defendant who is guilty of negligence which is the proximate cause of the injury to the plaintiff or, at least, permits the jury to render such a verdict. Such is clearly not the law in this jurisdiction. On the contrary the law of negligence in this State, as declared in many decisions of this Court, is that in order to recover in an action for personal injury the plaintiff must prove that the defendant was guilty of negligence which was the proximate cause of the injury of which the plaintiff complains and it must also appear from the evidence that the plaintiff was not guilty of contributory negligence, when contributory negligence is relied upon as a defense as it is in this case. Otherwise stated, when the plaintiff proves by a preponderance of the evidence that the defendant was guilty of negligence which was the proximate cause of the injury to the plaintiff, the plaintiff is entitled to recover unless it appears from the evidence that the plaintiff was guilty of negligence which proximately contributed to his injury. But, as stated by this Court in many cases, one of which is Graham v. Wriston, 146 W. Va. 484, 120 S. E.2d 713, “If a plaintiff’s negligence contributes proximately to cause the injuries of which he complains, such negligence precludes recovery, placing an imperative duty on the jury to find for the defendant.”

It is a fundamental principle of the law of negligence that if a plaintiff is guilty of contributory negligence he can not recover from a defendant whose negligence is the proximate cause of bis injury. See Lewis v. McIntire, 150 W. Va. 117, 144 S. E.2d 319; Jackson v. Cockill, 149 W. Va. 78, 138 S. E.2d 710; Graham v. Crist, 146 W. Va. 156, 118 S. E.2d 640; Brake v. Cerra, 145 W. Va. 76, 112 S. E.2d 466; Workman v. Wynne, 142 W. Va. 135, 94 S. E.2d 665; Pritchard v. City Lines of West Virginia, Inc., 136 W. Va. 278, 66 S. E.2d 276; Ray v. Clawson, 123 W. Va. 99, 14 S. E.2d 259; Slater v. Shirkey, 122 W. Va. 271, 8 S. E.2d 897; Yoder v. Charleston Transit Company, 119 W. Va. 61, 192 S. E. 349; Milby v. Diggs, 118 W. Va. 56, 189 S. E. 107; McLeod v. The Charleston Laundry, 106 W. Va. 361, 145 S. E. 756.

The principle is well settled by decisions of this Court that “When contributory negligence is relied on, an instruction directing a verdict in favor of plaintiff which omits any reference to the facts tending to establish contributory negligence, and entirely ignores such defense, is erroneous and such error is not cured by other instructions submitting such defense to the jury.” Point 3, syllabus, Blackwood v. Monongahela Valley Traction Company, 96 W. Va. 1, 122 S. E. 359. See also Adkins v. Minton, 151 W. Va. 229, 151 S. E.2d 295; Skaff v. Dodd, 130 W. Va. 540, 44 S. E.2d 621; Bragg v. C. I. Whitten Transfer Company, 125 W. Va. 722, 26 S. E.2d 217; Nichols v. Raleigh Wyoming Mining Company, 113 W. Va. 631, 169 S. E. 451; Culp v. The Virginian Railway Company, 77 W. Va. 125, 87 S. E. 187; Diddle v. Continental Casualty Company, 65 W. Va. 170, 63 S. E. 962, 22 L. R. A., N. S., 779; McVey v. St. Clair Company, 49 W. Va. 412, 38 S. E. 648; Claiborne v. Chesapeake and Ohio Railway Company, 46 W. Va. 363, 33 S. E. 262; McCreery’s Admx. v. Ohio River Railroad Company, 43 W. Va. 110, 27 S. E. 327.

When it appears from a preponderance of the evidence that the defendant is guilty of negligence which is the proximate cause of the injury to the plaintiff and it also appears from the evidence that the plaintiff is not guilty of contributory negligence the plaintiff is entitled to a verdict against the defendant, and conversely, when it appears from a preponderance of the evidence that the defendant is guilty of negligence which is the proximate cause of the injury to the plaintiff and it also appears from the evidence that the plaintiff is guilty of contributory negligence, the plaintiff can not recover. When it is shown by a preponderance of the evidence that the defendant is guilty of negligence which is the proximate cause of the injury to the plaintiff and it appears from the evidence that the plaintiff is not guilty of contributory negligence, an instruction which tells the jury that it must or should find in favor of the plaintiff, is a proper instruction and in the same state of the evidence an instruction, which may be characterized as permissive and which tells the jury that it may find in favor of the plaintiff is an improper instruction in that it misstates the law and tends to confuse and mislead the jury and to permit it to return an improper verdict in favor of the defendant who is guilty of negligence which is the proximate cause of the injury to the plaintiff. In that state of the evidence it is clearly the duty of the jury to return a verdict for the plaintiff and it may not return a verdict for the defendant as such permissive instruction implies that it could do. An instruction, such as those now under consideration, which fails to negative contributory negligence of the plaintiff but tells the jury that if it finds from a preponderance of the evidence that the defendant is guilty of negligence which is the sole proximate cause of the injury to the plaintiff the jury may return a verdict for the plaintiff permits the jury to return an improper verdict in favor of a plaintiff who is guilty of contributory negligence, which the law does not permit the jury to do. Such a verdict would be an erroneous verdict which should be set aside and the giving of such instruction constitutes reversible error.

“An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.” Point 2, syllabus, Hollen v. Linger, 151 W. Va. 255, 151 S. E.2d 330; Preston County Coke Company v. Preston County Light and Power Company, 146 W. Va. 231, 119 S. E.2d 420; Overton v. Fields, 145 W. Va. 797, 117 S. E.2d 598; Cato v. Silling, 137 W. Va. 694, 73 S. E.2d 731, certiorari denied, 348 U. S. 981, 75 S. Ct. 572, 99 L. Ed. 764, rehearing denied, 349 U. S. 924, 75 S. Ct. 659, 99 L. Ed. 1256; Buffington v. Lyons, 71 W. Va. 114, 76 S. E. 129; Kuykendall v. Fisher, 61 W. Va. 87, 56 S. E. 48, 8 L. R. A., N. S., 94, 11 Ann. Cas. 700; Ward v. Brown, 53 W. Va. 227, 44 S. E. 488. “It is reversibe error to give an instruction which tends to mislead and confuse the jury.” Point 5, syllabus, Sydenstricker v. Vannoy, 151 W. Va. 177, 150 S. E.2d 905; Preston County Coke Company v. Preston County Light and Power Company, 146 W. Va. 231, 119 S. E.2d 420; Overton v. Fields, 145 W. Va. 797, 117 S. E.2d 598; Hartley v. Crede, 140 W. Va. 133, 82 S. E.2d 672; Matthews v. Cumberland and Allegheny Gas Company, 138 W. Va. 639, 77 S. E.2d 180; Morrison v. Roush, 110 W. Va. 398, 158 S. E. 514; Chaney v. Moore, 101 W. Va. 621, 134 S. E. 204, 47 A. L. R. 800; Frank v. Monongahela Valley Traction Company, 75 W. Va. 364, 83 S. E. 1009.

“Ordinarily, when contributory negligence of the plaintiff is relied on as a defense, it is prejudicial error to give for the plaintiff an instruction which directs the jury to find for the plaintiff if certain recited facts are believed by the jury from the evidence, but which instruction does not specifically negative contributory negligence on the part of the plaintiff. The error involved in the giving of such erroneous instruction is not corrected by the giving to the jury of other instructions covering contributory negligence.” Point 7, syllabus, Adkins v. Minton, 151 W. Va. 229, 151 S. E.2d 295.

In Altvater v. Battocletti, 300 F.2d 156, 4th circuit, an action to recover damages for injury to the plaintiff caused by the alleged negligence of the defendant and another person, the United States District Court in its charge instructed the jury, over the objection of the plaintiff, that “if you should find that both the driver of the car and the defendant were guilty of negligence, that the accident would not have happened but for the negligence of the defendant, that the negligence of both concurred to the time of the accident and jointly contributed to it, as proximate causes thereof, then you may find for the plaintiff.” In holding that the foregoing instruction in the charge of the district court constituted reversible error in converting what should have been a mandatory instruction into a permissive instruction, the Circuit Court of Appeals of the Fourth Circuit used this language:

“The objection clearly states that the error is in attempting to give a mandatory instruction but failing to use mandatory language. The effect of this was to confuse the jury. The Court attempted to state the only way that the jury could find for the plaintiff. He clearly intended to say that if four things were found by the jury then the verdict would have to be for the plaintiff. However, the omission of the mandatory language and the use of ‘may’ in its place left the jury free to bring in a verdict for the defendant even if it found the four things specified by the judge. We think that this loose use of language could well have misled and confused the jury. There was ample evidence to enable the jury to reasonably find the four elements the Court specified in the instruction. The jury may well have so found, but believed that it could, nevertheless, give verdict for the defendant. Manifestly, if the four elements were found by the jury, then it had to give verdict for the plaintiff. Therefore, we think that the failure to use the mandatory language may well have misled the jury to plaintiff’s prejudice. Because the instruction was misleading and confusing, it was erroneous. The objection gave the judge notice of the source of the error. If the judge had changed ‘may’ to ‘must’ the possibility of confusing ahd misleading the jury would have been removed and the error would have vanished. The main purpose for requiring an objection under Rule 51 is to enable the trial court to correct the error. We think such opportunity was afforded here.

“The judgment is, therefore, reversed for a new trial in conformity with this opinion.”

In giving the erroneous instructions, Nos. 1, 3, 6 and 12, the circuit court presumably relied upon prior decisions of this Court in Walker v. Robertson, 141 W. Va. 563, 91 S. E.2d 468; Lawrence v. Nelson, 145 W. Va. 134, 113 S. E.2d 241; and Davis v. Fire Creek Fuel Company, 144 W. Va. 537, 109 S. E.2d 144. In those cases this Court gave its approval to certain permissive instructions. In the Walker case, by a vote of three to two, this Court said that the action of the trial court was correct in refusing to give an instruction which told the jury that “contributory negligence is the doing of a negligent act by a plaintiff which proximately contributes to causing the damages of which she complains. Therefore, you are instructed that if you find from the evidence that the plaintiff was guilty of committing any act of negligence, however slight, which proximately contributed to causing the injuries of which she complains, then you are not permitted to weigh the degree or amount of negligence of each of the parties, but you must return a verdict for the defendant,” and in giving the above quoted instruction when amended by substituting the word “may” for the stricken word “must.” The error of this Court in affirming the giving of the instruction as amended which, by the amendment, became a permissive instruction, is clearly expressed in the dissenting opinion of Judge Given, in which Judge Riley joined, in the Walker case, in this language: “the amendment changed the nature of the instruction from one requiring a finding for defendant, where contributory negligence is established to the satisfaction of the jury, to a ‘permissive’ instruction, permitting the jury to find either for or against the defendant, notwithstanding the establishment of contributory negligence which contributed proximately to plaintiff’s injury”; and “All agree that the evidence introduced, at least, presented a question for the jury as to whether plaintiff was contribuíorily negligent, yet the jury were told that though they found she was guilty of contributory negligence and that such negligence contributed proximately to her injury, she ‘may’ recover.” This Court also held in point 4 of the syllabus in the Walker case that “When contributory negligence is relied on as a defense, a binding instruction which imperatively directs the jury to find for the defendant should not be given if the instruction does not specifically state the acts or conduct of plaintiff constituting contributory negligence. It is not error for a trial court to amend such defective, binding instruction so as to make it permissive instead of imperative.” This clearly erroneous holding was expressly disapproved in point 10 of the syllabus and is condemned by point 9 of the syllabus in Graham v. Wriston, 146 W. Va. 484, 120 S. E.2d 713, in this language: “If a binding instruction for the plaintiff clearly negatives contributory negligence, it need not specifically state the conduct or acts of the plaintiff which are alleged to constitute such contributory negligence.” The erroneous holdings of this Court with respect to the giving of a permissive instruction in Lawrence v. Nelson, 145 W. Va. 134, 113 S. E.2d 241, and Davis v. Fire Creek Fuel Company, 144 W. Va. 537, 109 S. E.2d 144, were based on the decision in the Walker case. Those holdings and similar holdings in any other decision of this Court to the extent that they approve the giving of permissive instructions relating to the verdict which may be returned and which would permit the jury to render an improper verdict or which would permit a defendant guilty of negligence which is the proximate cause of the injury to a plaintiff, who is not guilty of contributory negligence, to escape liability, are expressly disapproved.

This Court now holds that in an action based on negligence for damages for injury suffered by the plaintiff, in which the defendant relies upon the defense of contributory negligence, a permissive instruction which, in substance, tells the jury that if the jury believes from a preponderance of the evidence that the defendant was guilty of negligence which was the sole proximate cause of the injury to the plaintiff, the jury may find for the plaintiff, is erroneous in that it fails to negative the defense of contributory negligence upon the part of the plaintiff and tends to mislead and confuse the jury in that it would permit the jury to return a verdict for either the plaintiff or the defendant. Under such instruction the jury could return an improper verdict for the plaintiff who was guilty of contributory negligence or for the defendant who was guilty of primary negligence even though the plaintiff was not guilty of contributory negligence. Instead of any such permissive instruction, an instruction which correctly states the law and which would require a proper verdict for the plaintiff should tell the jury that if the jury believes from a preponderance of the evidence that the defendant is guilty of negligence which is the proximate cause of the injury to the plaintiff and also believes from the evidence that the plaintiff is not guilty of contributory negligence, the jury should or must return a verdict for the plaintiff and, in the circumstances stated in such instruction, the only proper verdict that the jury, under the evidence and the law as stated in the instruction, could return would necessarily be a verdict for the plaintiff.

Notwithstanding the foregoing pronouncements nothing in this opinion is intended or should be considered to be applicable to or in disapproval of any permissive or incomplete instruction that does not relate to the kind of verdict or the manner in which it is reached by the jury. All such matters will, of course, be dealt with as and when they come before this Court for consideration and decision.

The judgment in favor of the plaintiff Mildred Yates for $5000.00 and the judgment in favor of the plaintiff Carl Yates for $2500.00 against both defendants are reversed, the verdicts of the jury are set aside, and this case is remanded to the Circuit Court of Jackson County for a new trial, which is here awarded the defendants.

Judgments reversed, verdicts set aside, and case remanded for a new trial.