Walker v. Robertson

Given, Judge,

dissenting:

I think correct propositions of law are stated in the syllabus, but believe that Point 4 is not responsive to the question before the Court, raised by the amendment of defendant’s Instruction No. 2, quoted in the majority opinion. As pointed out in the majority opinion, 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.

In Morton v. Baber, 118 W. Va. 457 , 190 S. E. 767 , this Court held: “3. * * * there is no error in instructing the jury that there can be no recovery if negligence of the decedent, however slight, contributed proximately to his own injury. Such negligence contributes proximately to the injury, if, without it, the injury would not have resulted.” It should be noticed that the existence *576 of contributory negligence which contributed proximately to the injury precludes, absolutely, any recovery by plaintiff. No discretion as to recovery, in such circumstances, rests in the jury or in the court. That rule of law has been heretofore uniformly followed by this Court. See Belcher v. Norfolk & Western Railway Co., 140 W. Va. 848 , 87 S. E. 2d 616 ; Reese v. Lowry, 140 W. Va. 722 , 86 S. E. 2d 381 ; Barr v. Curry, 137 W. Va. 364 , 71 S. E. 2d 313 ; Pritchard v. City Lines of West Virginia, Inc., 136 W. Va. 278 , 66 S. E. 2d 276 ; Divita v. Atlantic Trucking Co., 129 W. Va. 267 , 40 S. E. 2d 324 ; Casto v. Charleston Transit Co., 120 W. Va. 676 , 200 S. E. 841 ; Willhide v. Biggs, 118 W. Va. 160 , 188 S. E. 876 . “It is a general if not a universal rule, that, if the plaintiff has been guilty of contributory negligence, he cannot recover.” Point 4, Syllabus, Washington v. The B. & O. R. R. Co., 17 W. Va. 190 .

The majority opinion relies upon Bragg v. C. I. Whitten Transfer Co., 125 W. Va. 722 , 26 S. E. 2d 217 , and other cases cited in the majority opinion. An examination of those cases discloses that they relate to instructions which were binding in form, based on certain enumerated facts, but which omitted material facts supported by evidence. The instruction presently involved is not that type of instruction. It does not purport or attempt to designate facts concerning which proof was offered to establish contributory negligence. It attempts only to inform the jury of the rule of law relating to recovery where the jury have found, and were justified in finding, that plaintiff was guilty of contributory negligence which contributed proximately to the injury.

The importance of the question is apparent in the instant case where the evidence discloses that plaintiff deliberately walked blindly across perhaps the most busy street in one of the busiest cities, where no cross-walk existed, violating a city ordinance, without even looking for oncoming traffic after starting across the street, notwithstanding she was attempting to cross the street at not a great distance from an intersection of another busy *577 street from which heavy traffic flowed onto the street which she was attempting to cross. All agree that the evidence introduced, at least, presented a question for the jury as to whether plaintiff was contributorily 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.

Being of the views indicated, I respectfully dissent. I am authorized to say that Judge Riley joins in this dissent. We would reverse the judgment complained of and remand the case for a new trial.