Lancaster v. Potomac Edison Co. of West Virginia

Berry, Judge,

dissenting:

I agree with the majority of the Court that the question of negligence on the part of the defendant, and that contributory negligence and assumption of risk on the part of the plaintiff are questions for jury determination. However, I am of the opinion that the giving of Instruction No. 1 by the court offered by the plaintiff constituted reversible error. This Instruction, which is quoted in the majority opinion, is not only abstract but is misleading and completely omits the essential statement that before there can be any liability on the defendant the jury must believe from the preponderance of the evidence that the defendant was guilty of negligence which was the proximate cause of the death of plaintiff’s decedent. This is fundamental and cannot be ignored in an instruction which clearly indicates that the jury can find a verdict against the defendant without negligence on its part. This Instruction merely states that if he were in close proximity to the wires while painting the house and accidently touched the wires, the defendant would not be excused from liability. This amounts to a mandatory or binding instruction by directing the jury that it can return a verdict for the plaintiff if the plaintiff accidently touched the defendant’s wires. The Instruction was amended by the court so that the jury could find against *234 the defendant unless the jury further believed from all of the evidence that the plaintiff assumed the risk or was contributorily negligent. This resulted in additional confusion because it did not specifically set forth the acts which would constitute contributory negligence on the part of the decedent and such omission has been held to be prejudicial error. Bragg v. C. I. Whitten Transfer Company, 125 W.Va. 722 , 26 S.E.2d 217 ; Yates v. Mancari, 153 W.Va. 350 , 168 S.E.2d 746 .

Instructions 2, 3, 4 and 5 offered by the plaintiff and given by the court are all abstract instructions but are not binding instructions directing the jury to find for the plaintiff, and it is true, as stated in the majority opinion, that Instruction No. 6 offered by the plaintiff and given by the court instructed the jury that it must believe by a preponderance of the evidence that the defendant was negligent with regard to the placing of the power lines and that this negligence was the proximate cause of the accident resulting in the plaintiff’s decedent’s death and they should find, for the plaintiff unless it found that the plaintiff’s decedent was guilty of negligence which proximately contributed thereto or that he assumed the risk in climbing to the place where the wires were located while painting the roof. It will be noted that this Instruction told the jury that before it could find for the plaintiff it must believe from a preponderance of the evidence that the defendant was guilty of negligence which was the proximate cause of the death of plaintiff’s decedent.

The majority opinion states that the trial court attempted to cure Instruction No. 1 by the amendment so that it would not ignore the contributory negligence and assumption of risk defenses, and states that it should have been done in clearer and more precise language but does not refer to the fact, even after the Instruction was amended, that it did not specifically set out the acts constituting contributory negligence and assumption of risk. The majority opinion further states that although Instruction No. 1 was in some respects incomplete and *235 standing alone might have misled and confused the jury, but when read in conjunction with Instruction No. 6 offered by the plaintiff did not constitute reversible error because all instructions must be read as a whole. The case of Lawrence v. Nelson, 145 W.Va. 134 , 113 S.E.2d 241 , cited as authority for this proposition, was not a binding instruction and merely did not state that the prima facie negligence could be rebutted and inasmuch as another instruction did so state, it was held that they could be considered as a whole and the omission was not prejudicial error. This is an entirely different matter than what is involved with the defect in connection with plaintiff’s Instruction No. 1 in the case at bar. Instruction No. 1 is not only misleading and tends to confuse the jury but is contradictory to Instruction No. 6. This Instruction would indicate that the plaintiff could recover from the defendant if he accidently touched the wires. Instruction No. 6 correctly states that he can recover only if the jury believed from a preponderance of the evidence that the defendant was negligent in the first instance. Therefore, Instruction No. 1 is contradictory to Instruction No. 6 and for that reason constitutes reversible error. 10 M.J., Instructions, § 28, p. 233.

It has been consistently held that a bad instruction cannot be cured by a good one inconsistent therewith. Cobb v. Dunlevie, 63 W.Va. 398 , 60 S.E. 384 ; McKelvey v. Chesapeake & O. Ry. Co., 35 W.Va. 500 , 14 S.E. 261 ; McCreery’s Adm’x. v. Ohio River R. Co., 43 W.Va. 110 , 27 S.E. 327 .

A defect in one instruction is not cured by a correct statement in another, where the appellate court is unable to say that the jury could be misled by a defective instruction. Cobb v. Dunlevie, supra; State v. Taylor, 57 W.Va. 228 , 50 S.E. 247 .

A binding instruction which omits an essential element of the adversary’s case is erroneous and such error is not cured by another instruction even though they submit such element to the jury. Moore v. Hutchinson, 107 W.Va. *236 275 , 148 S.E. 78 ; Shaver v. Consolidation Coal Co., 108 W.Va. 365 , 151 S.E. 326 ; Bragg v. Whitten Transfer Company, supra.

It was held in the case of Bragg v. Whitten Transfer Company, supra, that if an instruction fails to tell the jury that it must find that the defendant’s negligence was the proximate cause of plaintiff’s injury this omission is reversible error.

For the reasons stated herein, I would reverse the judgment of the trial court, set aside the verdict of the jury and award the defendant a new trial.

I am authorized to say that Judge Carrigan joins in this dissent.