The opinion
Berry, Judge,
concurring:
I concur with the majority opinion of the Court in the disposition of this case but I am of the opinion that the evidence in the case clearly indicates the plaintiff was guilty of contributory negligence as a matter of law.
The plaintiff’s evidence is to the effect that she walked out into the street from behind a parked trailer truck; and whether she was a few feet behind it or twenty-five feet behind it, both of which are indicated by her testimony, it makes no difference because after she stated she had looked up and down the street she stated that she looked in the opposite direction from which the defendant’s automobile was being driven and then began to take two steps and was either struck or stepped into the defendant’s automobile about the middle of the street.
Under this set of facts the decision in the case of Jackson v. Cockill, 149 W. Va. 78 , 138 S. E.2d 710 , would govern because the principle involved in both cases is the same. In the Jackson case the plaintiff walked or ran out into the street without looking in the direction the defendant’s car was being driven and was struck thereby, and it was held that the plaintiff was guilty of contributory negligence as a matter of law. This proposition is clearly stated in the first point of the syllabus of that case wherein it is stated: “It .is the duty of a pedestrian crossing a highway or street to use his eyes effectively to protect himself against impending danger from vehicles, and if he does not do so when he has the opportunity so to do he will be guilty of contributory negligence as a matter of law.” If *371 the plaintiff in the instant case had looked effectively to her right or the direction in which the defendant’s car was 'approaching she would have never stepped into the front or side of the defendant’s automobile. In other words, if she had used the proper care in keeping a lookout she would have seen the defendant’s automobile and the accident would never have occurred, and in not so doing she is barred from recovery. Smith v. Penn Line Service, Inc., et al., 145 W. Va. 1 , 113 S. E.2d 505 ; Brake v. Cerra, 145 W. Va. 76 , 112 S. E.2d 466 ; Jackson v. Cockill, supra.
It has been repeatedly held and is succinctly stated on page 84 of the Jackson v. Cockill case, supra, that: “A pedestrian cannot move into the path of an approaching automobile and be struck thereby and absolve himself of contributory negligence.”
For the reasons stated in this concurring opinion, I would reverse the judgment of the Circuit Court of Jackson County on the ground as stated above that the plaintiff was guilty of contributory negligence as a matter of law and the only instruction that should have been given would have been a peremptory instruction to find for the defendant. Therefore, I would not reach the question with regard to the instructions raised in this case but I have no objections to the clarifying of the confusion that has resulted in the oases decided by this Court dealing with permissive and binding instructions. The cases of Davis v. Fire Creek Fuel Co., 144 W. Va. 537 , 109 S. E.2d 144 , and Lawrence v. Nelson, 145 W. Va. 134 , 113 S. E.2d 241 , written by me dealing with this question, merely followed the case of Walker v. Robertson, 141 W. Va. 563 , 91 S. E.2d 468 , which was decided before I came on the Court.