Wilson v. EdwardsWilson v. Edwards
- Reporters:
- , ,
- Before:
- Haymond
The case was tried upon the declaration of the plaintiff, which contains a single count, and separate pleas of not guilty filed by the defendants Edwards and Corbin. No plea was filed by the defendant Simmons or the defendant Fortney. After the jury was sworn and before the introduction of evidence, on motion of the defendants, a view by the jury was had of the scene of a collision between an automobile owned by the defendant Fortney and driven by the defendant • Simmons and a truck owned by the defendant Edwards which had been previously parked by its driver, the defendant Corbin, on or near the edge of the improved portion of a secondary public highway in Marion County designated as Route No. 64 and known as the Pleasant Valley Road. In that collision which occurred shortly before
The evidence bearing upon the material facts, except those which relate to the exact position of the truck and the condition of the driver of the automobile at the time of the collision, is not conflicting.
The collision between the truck owned by the defendant Edwards and the automobile owned by Fortney and driven at the time by the defendant Simmons occurred about eleven thirty o’clock on Saturday night September
Prior to September 1, 1951, the defendant Simmons was employed at an industrial plant in Akron, Ohio, and had been residing in that city. The defendant Fortney, the owner of the Oldsmobile sedan, was also employed at the same plant and also resided in Akron. The wife and the children of the defendant Simmons had continued to reside near Fairmont, in Marion County, and the day before the wreck, he borrowed the automobile from Fort-ney for the purpose of coming to Fairmont and taking his family to Akron with him. He drove the automobile from Akron to Fairmont where he arrived during the morning of September 1, 1951. He was a brother-in-law of William G. Wilson and his brother John PI. Wilson, Jr., and he spent a part of the day with them at the home of their father in Fairmont. While there he and the Wil-sons arranged to meet later at the Air Corps Club in Fairmont where dances were held and intoxicating drinks were served. John H. Wilson, Jr., had a social engagement with a young woman and about seven thirty o’clock that evening he and she went together to the club, where they were joined by Simmons and William G. Wilson about ten o’clock that night. There the four remained for about twenty minutes and while they were there Simmons had one mixed drink which contained whiskey and the young woman drank one glass of coca cola. John H. Wilson, Jr., stated that he had one drink at the Air Corps Club but he did not say what the drink was. It does not appear that William G. Wilson drank anything while he and his companions were at that place. After leaving the Air Corps Club they went in the automobile driven by Simmons to a restaurant located south of Fair-mont on Route No. 64 known as Evening Inn. They stayed at that place for about thirty minutes and while there each of them drank one glass of beer. Their conduct there was quiet and orderly. When they left the restaurant a few minutes before the collision they intended to go south to Benton’s Ferry and then to return to Fairmont by a different route.
After entering the automobile at the Evening Inn, Simmons, the driver, the young woman and John H. Wilson, Jr., occupied the front seat from left to right in that order and William G. Wilson occupied the right side of the rear seat. From the time they started from the Evening Inn until the time of the collision none of the occupants of the automobile made any objection to the manner in which Simmons was driving. As the automobile entered the northern end of the curve its right wheels were off the pavement and on the berm on that side of the road. The speed of the automobile was 35 or 40 miles per hour and it continued round the curve at that speed and with its right wheels on the berm at a distance of two to three feet from the right edge of the pavement until just before it reached and struck the truck. When it was almost to the truck Simmons suddenly steered it to the left and the front
With respect to the exact location of the truck on the right side of the road the evidence is conflicting. As it is clearly established that it was placed-and left on the traveled portion of the highway, however, it is not material whether it was wholly on the berm, as the defendants Edwards and Corbin contend, or whether the rear .end extended upon or over the paved part of the road. In either position at night, without lights or warning flares, it endangered the safety of motorists using the highway. Two deputies of the sheriff of Marion County who visited the scene within a few minutes after the collision testified that the truck was entirely on the berm with the left front wheel about three feet, and the left rear dual tread wheels about six or eight inches, from the right edge of the improved part of the road. Another witness who saw it after the wreck testified that it was entirely on the berm and two or three feet from the right edge of the improved portion of the road. The defendant Corbin, who said he placed the truck at seven fifteen o’clock where it was when the collision occurred, and other witnesses who saw it there before the wreck, testified that it was entirely on the berm and that its left wheels were parallel with and about two, two and one half, three, or four feet from the right edge of the improved part of the road. One witness, produced by the plaintiff, and the defendant Simmons testified that the rear end of the body of the truck extended upon and over the concrete pavement of the road but neither of them stated how far it so extended.
Concerning the condition of Simmons, the driver of the automobile, the two deputies testified that he was intoxicated when they came to the scene of the wreck and that because of his condition he was there placed under arrest. Though he admitted that he had drunk one glass of beer and a mixed drink which contained whiskey within a period of less than two hours before the collision, he denied that he was intoxicated or under the influence of liquor, and a witness who observed him and his three companions at the Evening Inn and talked to him shortly after the collision testified that he did not appear to be under the influence of liquor.
By their assignments of error the defendants Edwards and Corbin seek reversal of the final judgment of the circuit court on substantially these grounds: (1) The conduct of the defendant Corbin in parking the truck where it was at the time of the collision without lights or warning flares and the conduct, of the defendant Simmons in driving the automobile into the rear of the truck were not concurrently the proximate cause of the injuries sustained by plaintiff’s intestate, but the conduct of the defendant Simmons, as an independent intervening agency, was the proximate cause of such injuries; (2) William G. Wilson was guilty of negligence which was the proximate cause of his death; (3) Instructions Nos. 1, 2, 8, 9 and 14, offered by the defendants and refused by the trial court, should have been given; (4) Instruction No. 11, offered by the plaintiff and, as amended, given by the trial court, should have been refused; and (5) the action of the defendant’ Corbin in placing the truck in the position occupied by it at the time of the collision was not within the scope of his employment by, and was not binding upon, the defendant Edwards.-
To support their contention that the conduct of the defendant Corbin in placing and leaving the truck in the position in which it was at the time of the collision, without lights or flares, was not the proximate cause of the injury to plaintiff’s intestate and that the proximate cause of his injury was the negligence of the defendant Simmons in driving the- automobile against the stationary truck which, as an intervening independent act, superseded any negligence of the defendant Corbin, the defendants Edwards and Corbin cite and rely upon the cases of Webb v. Sessler, 135 W. Va. 341, 63 S. E. 2d 65; Anderson v . Baltimore and Ohio Railroad Company, 74 W. Va. 17, 81 S. E. 579, 51 L. R. A., N. S., 888; Snyder v. Philadelphia Company, 54 W. Va. 149, 46 S. E. 366, 63 L. R. A. 896, 102 Am. St. Rep. 941; Stuck v. Kanawha and Michigan Railway Company, 76 W. Va. 453, 86 S. E. 13; and Estep v. Price, 93 W. Va. 81, 115 S. E. 861.
In the Webb case the plaintiff sued an airplane pilot, the owner and the lessees of an airport, the operator of an airport, and the operator of a flying school conducted on the airport, for injuries received by plaintiff’s intestate while sitting in an automobile on a highway near the airport when the pilot caused the airplane to strike the automobile. This Court held that the negligence of the pilot in attempting to land the airplane before attaining a safe altitude was the proximate cause of the fatal injuries sustained by plaintiff’s intestate and, as the effective intervening cause of the injuries, superseded the alleged negligence of the other defendants in the maintenance and the operation of the airport in close proximity to the public highway.
In the Anderson case the declaration charged that the defendant, a railroad company, as a common carrier and the operator of a switch from its main line to a coal mine, furnished the coal company a railroad car for use in transporting coal which, because of defective brakes, escaped from the employees of the coal company, ran down an incline, and collided with and injured the property of the plaintiff. The defect alleged was that the brake with which the car was equipped was not sufficient to enable the employees of the coal company to check and control its movements in placing it at the tipple from which it was to receive coal for shipment. It appeared that both the railroad company and the coal company knew that the brake was defective, that the railroad company in placing the car secured it by brake and by blocks, and that it remained in that position until employees of the coal company, in attempting to adjust it to the tipple, negligently permitted it to escape and collide with the property of the plaintiff. This Court held that as the coal company accepted the car for use at its mines, knowing it to be inadequately equipped with brakes and, in an effort to adjust it to its tipple to receive its complement of coal, negligently permitted it to escape and injure the property of the plaintiff, the railroad company was not liable for the injury even though it may not have occurred if the car had been equipped with brakes which were adequate to control its movements. Under the facts in that case the negligence of the coal company was the effective intervening cause which superseded the negligence of the railroad company and was the proximate cause of the injury.
The factual situations in the Webb and the Anderson cases were materially different from the facts here involved and the doctrine of those cases is inapplicable to the case at bar.
In the Snyder, Stuck, and Estep cases no intervening act occurred to supersede the operation of the negligence of the defendant and in each instance the negligence of the defendant was regarded as the proximate cause of the injury of which the plaintiff complained.
The North Carolina case of Beach v. Patton, 208 N. C. 134, 179 S. E. 446, also cited by the defendants Edwards and Corbin, is clearly distinguishable from the present case. In that case one of the defendants, Riddick, after colliding with another automobile, placed the automobile driven by him on the side of the highway where it re mained for approximately fifteen minutes. While it was in that position, another defendant, Patton, to avoid it drove his automobile upon and fatally injured plaintiff’s intestate who was standing upon the shoulder of the road opposite the Riddick automobile. The court held that Riddick in placing his automobile where he placed it could not reasonably anticipate that Patton, to avoid a collision, would injure plaintiff’s intestate on the opposite shoulder of the road; that Riddick’s act was not the proximate cause of the injury; and that the conduct of Patton in operating his automobile was a new and independent cause which broke any sequence between the death of plaintiff’s intestate and the parking of the automobile by Riddick. In the opinion the court used this quotation from the case of Osborne v. Atlantic Ice and Coal Company, 207 N. C. 545, 177 S. E. 796: “The law only requires reasonable foresight, and when the injury complained of is not reasonably foreseeable, in the exercise of due care, the party whose conduct is under investigation is not answerable therefor. Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted.”
The contention of the defendants Edwards and Corbin that the conduct of the defendant Simmons in operating the automobile in which plaintiff’s intestate was riding as a guest and in causing it to strike the truck was an intervening cause which was the proximate cause of- his death is not tenable. To be an intervening cause of an injury the negligent act or omission must be a new effective cause which, operating independently of anything else, becomes the proximate cause of the injury. 13 M. J., Negligence, Section 23; Chesapeake and Ohio Railway Company v. Crum, 140 Va. 333, 125 S. E. 301.
In the instant case it is clear, from the evidence, that the conduct of the defendant Corbin, in placing the truck on the berm in close proximity to the right edge of the
improved portion of the road near the south end of the curve at night, without lights or warning flares, and the conduct of the defendant Simmons in driving the automobile at a speed of thirty five or forty miles per hour with the right wheels upon the berm under conditions which did not enable him to discover the position of the truck in time to avoid striking it together caused the injuries which resulted in the death of plaintiff’s intestate. Each of those defendants was guilty of negligence which continued until the moment of the collision and concurred in point of time and place to produce the fatal injuries of which the plaintiff complains. It is true that the act of the defendant Corbin
In placing and leaving the truck in the position where it was at the time of the collision, under the conditions
which
The contention of the defendants Edwards and Corbin that plaintiff’s intestate, William G; Wilson, was guilty of negligence that proximately caused or contributed to his fatal injuries is not supported by the evidence. It is true that he voluntarily rode in the automobile, as the guest of the driver, Simmons, from the Air Corps Club to the Evening Inn after Simmons had drunk one mixed drink which contained whiskey; that he also voluntarily rode in the automobile, as such guest, from the Evening Inn to the place of the collision shortly after Simmons had also drunk one glass of beer; and that he made no objection or voiced no protest against the manner in which Simmons drove the automobile at any time prior to the collision. The evidence, however, does not disclose that Simmons operated the automobile in any unusual, improper, or careless manner until he entered the northern end of the two hundred foot curve at or near the southern end of which the collision occurred. It is evident that he drove the automobile for a period of several minutes in going from the Air Corps Club to the Evening Inn and it may be fairly assumed that nothing out of the ordinary or that would call for any protest from any of his three companions happened during that part of the trip and that he operated the automobile between the Air Corps Club and the Evening Inn safely and without mishap.
The young woman, who was riding in the middle of the front seat, though looking, did not see the truck before the collision or observe whether the automobile was on the paved portion of the road or the berm or experience any fear because of the manner in which the automobile was driven. John H. Wilson, Jr., the brother of plaintiff’s intestate, who was sitting on the right side of the front seat and apparently directly in front of his brother, testified that in going from the Evening Inn to the place of the collision Simmons was driving “very good”; that he was not “speeding”; that he “couldn’t tell” whether the automobile when rounding the curve was off the pavement; that he saw the lights of an automobile ahead approaching from the opposite direction; that he did not notice
the truck which suddenly appeared as a black object or black shape “sticking out in the road”
If none of the occupants of the front seat of the automobile, who were looking forward, saw the truck until only a few seconds before the collision and if none of them was sure that the automobile was off the pavement it is difficult to see how plaintiff’s intestate, who was sitting on the right side of the rear seat directly behind his brother, could have seen the truck in time to have warned the driver of its presence or to have realized the dangerous position of the automobile and utter any effective protest. If the speed of the automobile at the time it entered the curve and continued round it was thirty five or forty miles per hour as testified to by both Simmons and John H. Wilson, Jr., it was traveling between fifty one and fifty nine feet per second and it went from the northern end of the curve to the point of the collision in less than five seconds. In the circumstances disclosed by the uncontroverted testimony of Simmons and John H. Wilson, Jr., that neither of them saw the truck until a few seconds before the collision, it is obvious that plaintiff’s intestate, if he saw the truck at all, did not see it in time to warn the driver of its presence or to enable him to avoid striking it or to register an effective protest against the manner in which the automobile was being driven or the speed at which it was traveling.
As to the condition of Simmons at and immediately before the time of the collision it is reasonably clear that none of his three companions thought he was intoxicated or under the influence of liquor or that his ability to drive the car was in any wise affected or impaired by the two drinks which he took between ten o’clock and the time of the wreck about an hour and a half later. Though the two deputies who arrived at the scene of the wreck within a few minutes after the collision happened testified, as witnesses called by plaintiff, that Simmons was intoxicated their testimony on that point is controverted by the testimony of another witness, produced in behalf of the plaintiff, who.observed Simmons at the Evening Inn and also saw and talked with him shortly after the collision and who testified that he was not intoxicated. Whatever may have been his actual condition it is reasonably clear, from the evidence, that if he was intoxicated his intoxication was not apparent to plaintiff’s intestate at any time before the collision.
It can not be said, as a matter of law, that Simmons was intoxicated by the two drinks which he took before the collision and, if his condition was not that of apparent intoxication at the time he left the Evening Inn, shortly before the collision, plaintiff’s, intestate was not guilty of contributory negligence as a matter of law in voluntarily entering the automobile at that place and in remaining in it until the collision occurred. Gilmore v. Huntington Cab Company, 124 W. Va. 469, 21 S. E. 2d 187. In the Gilmore case this Court said in point 2 of the syllabus: “A passenger in a taxicab, driven by an admittedly intoxicated driver at the time when such passenger is injured, is not guilty of contributory negligence as a matter of law where the record does not show that the driver was apparently intoxicated when the passenger entered the cab, although the evidence shows that, prior to such entry, the passenger and driver together engaged in drinking intoxicating beverages.”
In an action to recover damages for personal injury or wrongful death the questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them. Daugherty v. Baltimore and Ohio Railroad Company, 135 W. Va. 688, 64 S. E. 2d 231; Davis v. Pugh, 133 W. Va. 569, 57 S. E. 2d 9; Yuncke v. Welker, 128 W. Va. 299, 36 S. E. 2d 410; Taylor v. City of Huntington, 126 W. Va. 732, 30 S. E. 2d 14; Lindsey v. Bluefield Produce Company, 91 W. Va. 118, 112 S. E. 310; Ewing v. Lanark Fuel Company, 65 W. Va. 726, 65 S. E. 200, 29 L. R. A., N. S., 487. Here the question whether plaintiff’s intestate was guilty of negligence which proximately caused or contributed to his injury was submitted to the jury under proper instructions. By its verdict the jury necessarily found that he was not negligent and, as that finding is not clearly wrong, or not contrary to the weight of the evidence, or not without evidence to support it, it will not be disturbed by this Court. Thrasher v. Amere Gas Utilities Company, 138 W. Va. 166, 75 S. E. 2d 376; Guyandotte Coal Company v. Virginian Electric and Machine Works, 94 W. Va. 300, 118 S. E. 512; Griffith v. American Coal Company, 78 W. Va. 34, 88 S. E. 595; Bosley v. Baltimore and Ohio Railroad Company, 54 W. Va. 563, 46 S. E. 613, 66 L. R. A. 871.
The third ground on which the defendants Edwards and Corbin seek reversal of the final judgment of the circuit court relates to the action of that court in refusing to give Instructions Nos. 1, 2, 8, 9 and 14 offered by those defendants.
Instruction No. 1, a peremptory instruction, would have directed the jury to find a verdict for both defendants and Instruction No. 2, also a peremptory instruction, would have directed the jury to find a verdict for the defendant Edwards. As the questions whether either or both of these defendants, or the plaintiff’s intestate, was guilty of negligence were, under the evidence, for the determination of the jury, both instructions were properly refused by the trial court.
Instruction No. 8 would have told the jury that if the jury believed from the preponderance of the evidence
that plaintiff’s intestate was a passenger in the automobile involved in the collision it was the duty of plaintiff’s intestate, as a reasonably prudent person, to look for and observe any danger which the driver of the automobile might fail to see and observe and to take such steps, by warning or otherwise, which plaintiff’s intestate as a reasonably prudent person might be able to take, to prevent the driver of the automobile from driving it at such speed or in such manner as to cause the collision with the parked truck; and that if the jury believed from the evidence that the accident was the result of the failure of plaintiff’s intestate to look for and observe the parked truck and to take such steps, by warning or otherwise, to prevent the driver of the automobile from colliding with the parked truck, and that as a result of any failure of plaintiff’s intestate to look for and observe the presence of the parked truck the collision occurred, and but for such failure upon the part of plaintiff’s intestate the collision would not have occurred, plaintiff’s intestate was guilty of negligence and the plaintiff could not recover. As already pointed out it does not appear from the evidence that plaintiff’s intestate had any reasonable opportunity to warn the driver of the automobile of the presence of the truck in time to enable him to avoid striking it or that the collision was the result of the failure of plaintiff’s intestate to observe the presence of the truck or that the collision would not have occurred if plaintiff’s intestate had observed the presence of the truck and given warning of that fact to the driver of the automobile. The instruction assumes the existence of facts which are not embraced in or established by the evidence and for that reason it is not based upon or supported by the evidence. Instructions must be based upon the evidence and an instruction which is not sustained by evidence should not be given.
Thrasher
v.
Amere Gas Utilities Company,
138 W. Va. 166, 75 S. E. 2d 376;
Ballengee
v.
Whitlock,
138 W. Va. 58, 74 S. E. 2d 780;
Cato
v.
Silling,
137 W. Va. 694, 73 S. E. 2d 731;
Kap-Tex, Inc.,
v.
Romans,
136 W. Va. 489, 67 S. E. 2d 847;
Thomason v
.
Mosrie,
134 W. Va. 634, 60 S. E. 2d 699;
Chesa
peake and Ohio Railway Company
v.
Johnson,
134 W. Va. 619, 60 S. E. 2d 203;
Davis
v.
Pugh,
133 W. Va. 569, 57 S. E. 2d 9;
State
v.
Humphreys,
128 W. Va. 370, 36 S. E. 2d 469;
Neal
v.
City of Bluefield,
105 W. Va. 201, 141 S. E. 779;
Instruction No. 9 would have told the jury that the law placed upon every person the duty to take such precaution for his own safety as a reasonably prudent person would take under like circumstances and conditions; that failure to do so constitutes negligence in law; and that if the jury should find from the preponderance of all the evidence that plaintiff’s intestate continued to ride in the automobile driven by Simmons after he discovered, or by the exercise of ordinary care should have discovered, that Simmons was either under the influence of intoxicants or was driving the car in a negligent and careless manner, without protest or without making any effort to leave the automobile after having an opportunity to do so following such discovery, and that a reasonably prudent person under such circumstances would have taken such precaution for his safety, plaintiff’s intestate would be guilty of negligence; and that if the jury should further find that such negligence contributed in any degree to the collision which caused the death of plaintiff’s intestate, the plaintiff could not recover and the jury should find all the defendants not guilty. Instruction No. 9, like Instruction No. 8, assumed the existence of facts which were not shown or established by the evidence and for that reason it was properly refused: American Canning Company v. Flat Top Grocery Company, 68 W. Va. 698, 70 S.E. 756; Cobb v. Dunlevie, 63 W. Va. 398, 60 S. E. 384. There is no evidence to show that Simmons was noticeably or apparently intoxicated before the collision or that the two drinks which he had taken affected or impaired his ability to operate the automobile or that plaintiff’s intestate had any reason to believe that Simmons was intoxicated and for that reason incapable of driving the automobile in a proper manner. The instruction also assumes, contrary to the evidence, that plaintiff’s intestate had an opportunity to leave the automobile after Simmons began to drive it in a careless or negligent manner which, as far as the evidence discloses, he did not do until he entered the northern end of the curve less than five seconds before the collision occurred. In that respect the instruction is also misleading and was properly refused for that reason.
The defendants Edwards and Corbin insist that under the holdings of this Court in the cases of
Young
v.
Wheby,
126 W. Va. 741, 30 S. E. 2d 6, 154 A. L. R. 919;
Broyles
v.
Hagerman,
116 W. Va. 267, 180 S. E. 99;
Adams
v.
Hutchinson,
113 W. Va. 217, 167 S. E. 135;
Clise
v.
Prunty,
112 W. Va. 181, 163 S. E. 864;
Herold
v.
Clendennen,
111 W. Va. 121, 161 S. E. 21;
Lewellyn
v.
Shott,
109 W. Va. 379, 155 S. E. 115;
Pierce
v.
Baltimore and Ohio Railroad Company,
99 W. Va. 313, 128 S. E. 832;
Jameson
v.
Norfolk and Western Railway Company,
97 W. Va. 119, 124 S. E. 491; and
Young
v.
White Sulphur and Huntersville Railroad Company,
96 W. Va. 534, 123 S. E. 433, all of which they cite, Instructions Nos. 8 and 9, requested by them, should have been given. That contention is devoid of merit. In some of those cases the plaintiff, a guest, sued his host and in others the guest or his personal representative sued a railroad company to recover for injuries received by the plaintiff or his intestate. In each of those cases, however, in which the defense that the guest was guilty of negligence which proximately caused or contributed to the injury was sustained, it sufficiently appeared from the evidence that the guest was aware of the danger and had full opportunity to avoid it or, by giving timely warning or making timely protest, to enable the driver of the automobile to do so, or that the guest knew or should have known that to continue to ride in the automobile,
after an opportunity to leave it, endangered his own safety. In each such instance the guest, with knowledge of the danger and full opportunity to act to avoid it, failed to exercise the care of an ordinarily prudent person for his own safety and his failure to do so prbxi-mately caused
The two Instructions, Nos. 8 and 9, were also properly refused for the additional reason that even if they had been based upon the evidence the question whether plaintiff’s intestate, while riding in the automobile, was guilty of negligence which proximately caused or contributed to his injury, which the’ instructions would have submitted to the jury, was fairly submitted to it by Instruction No. 7 which was offered by the defendants Edwards and Cor-bin and given by the trial court. The duplication of instructions is neither necessary nor desirable. Thrasher v. Amere Gas Utilities Company, 138 W. Va. 166, 75 S. E. 2d 376; Bailey v. DeBoyd, 135 W. Va. 730, 65 S. E. 2d 82; Kelly v. Rainelle Coal Company, 135 W. Va. 594, 64 S. E. 2d 606; Davis v. Pugh, 133 W. Va. 569, 57 S. E. 2d 9; Franklin v. Pence, 128 W. Va. 353, 36 S. E. 2d 505; Robertson v. Hobson, 114 W. Va. 236, 171 S. E. 745; State v. Thomas, 110 W. Va. 192, 157 S. E. 162; Drake v. Clay Hardware & Supply Company, 110 W. Va. 63, 157 S. E. 35; State v. Bowles, 109 W. Va. 174, 153 S. E. 308; State v. Peoples, 106 W. Va. 262, 145 S. E. 389.
Instruction No. 14 would have told the jury that though the jury should believe that the defendant Corbin was “guilty of negligence and that he violated a statute or statutes” of this State in parking the truck at the place shown by the evidence, his negligence in violating the statute was not alone sufficient to render him liable unless the jury also believed that his negligence in parking the truck in violation of the statute was the proximate cause of the collision. To sustain a recovery for the negligent violation of a statute or an ordinance such negligence must be the proximate cause of the injury. Jones v. Virginian Railway Company, 115 W. Va. 665, 177 S. E. 621; Ambrose v. Young, 100 W. Va. 452, 130 S. E. 810. The instruction, to the extent that it deals with the negligence of the defendant Corbin in violating the statute, correctly states the law as recognized and applied by this Court in numerous decisions and, if it had not also contained the statement that though the jury should believe that the defendant Corbin was “guilty of negligence” and had dealt merely with the question of his liability for negligence in violating the statute, it would have been correct and should have been given. In placing the truck on or near the highway at night, without lights, however, the defendant Corbin not only violated the statute but he also violated the duty imposed upon him by law, independently of the statute, not to place the truck in a position on or near the highway which would likely endanger or cause injury to persons entitled to travel upon it. Divita v. Atlantic Trucking Company, 129 W. Va. 267, 40 S. E. 2d 324; Cooper v. Teter, 123 W. Va. 372, 15 S. E. 2d 152. Having stated generally that if the jury believed that the defendant Corbin was guilty of negligence, the instruction was incomplete in omitting any reference to the liability of the defendant Corbin in disregarding the duty imposed upon him independently of the statute and in failing to inform the jury that his negligence in violating that duty would render him liable only if such negligence was the proximate cause of the injury sustained by plaintiff’s intestate. Refusal of an incomplete instruction is not error. Smith v. The City of Bluefield, 132 W. Va. 38, 55 S. E. 2d 392. Being incomplete in the particulars indicated, the instruction would have tended to leave the impression with the jury that the only ground of negligence on which the defendant Corbin could be held to be liable was his negligence in violating the statute and in that way it would have misled or confused the jury. An instruction which tends to mislead the jury is erroneous and should be refused. Gilkerson v. Baltimore and Ohio Railroad Company, 129 W. Va. 649, 41 S. E. 2d 188; Wilson v. City of Elkins, 86 W. Va. 379, 103 S. E. 118; Bartley v. Western Maryland Railway Company, 81 W. Va. 795, 95 S. E. 443; Chambers v. Spruce Lighting Company, 81 W. Va. 714, 95 S. E. 192; Brogan v. Union Traction Company, 76 W. Va. 698, 86 S. E. 753; Laraway v. Croft Lumber Company, 75 W. Va. 510, 84 S. E. 333; Walker v. Strosnider, 67 W. Va. 39, 67 S. E. 1087, 21 Ann. Cas. 1; Stewart v. Doak Brothers, 58 W. Va. 172, 52 S. E. 95; Parrish v. City of Huntington, 57 W. Va. 286, 50 S. E. 416; Henry v. Davis, 7 W. Va. 715. The instruction in its incomplete form does not correctly propound the law applicable to the case and for that reason it was properly refused. An instruction which does not correctly state the law is erroneous. Moore v. Turner, 137 W. Va. 299, 71 S. E. 2d 342; Thomason v. Mosrie, 134 W. Va. 634, 60 S. E. 2d 699; Gilkerson v. Baltimore and Ohio Railroad Company, 129 W. Va. 649, 41 S. E. 2d 188; Parrish v. City of Huntington, 57 W. Va. 286, 50 S. E. 416.
The defendants Edwards and Corbin also complain of the action of the trial court in giving, as amended by the court, Instruction No. 11, offered by the plaintiff. This instruction told the jury that if negligence of each of the defendants, which was the proximate cause of the collision, was established by the evidence, no one of the defendants could escape liability by showing the negligence of the other defendants. Though somewhat abstract in form, the instruction merely told the jury that if all the defendants were guilty of negligence which proximately caused the injury complained of, none of them could be exonerated of his negligence by showing the negligence of the others and in so informing the jury it correctly stated the law. See Fawcett v. Pittsburgh, Cincinnati and Saint Louis Railway Company, 24 W. Va. 755; Lynchburg Telephone Company v. Booker, 103 Va. 594, 50 S. E. 148; Richmond Coca-Cola Bottling Works v. Andrews, 173 Va. 240, 3 S. E. 2d 419; Yonker v. Williams, 169 Va. 294, 192 S. E. 753; Price v. Burton, 155 Va. 229, 154 S. E. 499. An abstract instruction is not favored but the action of a court in giving such an instruction is not necessarily reversible error. Underwood v. Goff, 131 W. Va. 662, 49 S. E. 2d 860. The defendants Edwards and Corbin also contend that it is a binding instruction which ignores their defense of contributory negligence of plaintiff’s intestate and that neither the defendants Edwards and Corbin nor the defendant Simmons relied on the negligence of the other or others as a defense against the claim of the plaintiff. Neither contention is well founded. The instruction is not a binding instruction and the question whether negligence of plaintiff’s intestate proximately caused or contributed to” his fatal injuries was submitted to the jury under proper instructions offered respectively by the defendants Edwards and Corbin and the defendant Simmons. That the defendants Edwards and Corbin relied upon the negligence of the defendant Simmons as the sole proximate cause of the injury in defense of the claim of the plaintiff is shown by Instruction No. 10 to that effect, offered by them and, as amended, given by the trial court; and that the defendant Simmons relied upon the negligence of the defendants Edwards and Corbin as the sole proximate cause of the injury in defense of the claim of the plaintiff is likewise shown by Instruction No. 25 to that effect, offered by him and, as amended, also given by the trial court. The action of the trial court in giving the instruction, as amended, though not favored because abstract in form, did not constitute reversible error.
The fifth and final assignment of error of the defendants Edwards and Corbin is that the evidence does not show that the defendant Corbin, in placing and leaving the truck where it was at the time of the collision, was acting within the scope of his employment as the agent of the defendant Edwards and for that reason the defend
ant Edwards can not be held liable for the conduct of the defendant Corbin in so placing and leaving the truck. The defendant Corbin, as a witness in behalf of himself and the defendant Edwards, testified that on September 1, 1951, and for
The verdict of the jury against the defendants Edwards and Corbin is amply supported by the evidence; and during the trial of this case the circuit court committed no prejudicial error of law. In consequence the verdict of the jury will not be set aside by this Court. “When a case has been tried and the questions of fact arising in it have been submitted to a jury and a verdict has been
fairly rendered,
The final judgment of the Circuit Court of Marion County is affirmed.
Affirmed.