The opinion
Browning, PresideNt,
dissenting:
I respectfully dissent from the decision of the Court in this case in holding as a matter of law that: (1) The defendants, Penn Line Service, Inc., and J. W. Hosey, were not guilty of negligence; (2) if they were guilty of negligence, they were not liable to the plaintiff since the sole proximate cause of the plaintiff’s injuries was the negligence of the defendant Canterbury; and (3) the implication, at least, thát if these defendants were guilty of negligence, and their negligence contributed proximately to the plaintiff’s injuries, she would be barred from recovery by her contributory negligence. My primary concern is the holding from the evidence in this record that no question of negligence was presented for jury determination. If there was no primary negligence such negligence, of course, could not have been a proximate cause of the plaintiff’s injuries, and, in the absence of primary negligence, there could have been no contributory negligence. Hereinafter Penn Line Service, Inc:, and their driver Hosey, will be referred to as the defendants. If reference to the defendant Canterbury is necessary, he will be referred to as the defendant Canterbury.
It is my opinion that the holding that the defendants were guilty of no negligence is in conflict with the weight of authority in this country and many prior decisions of this Court, and that this erroneous conclusion was predicated upon three false premises: *25 (1) That the collision occurred within the municipal limits of the City of Beckley was significant; (2) the judicial determination that the truck was “lawfully” parked when such determination was peculiarly one of fact for jury determination; and (3) the judicial assumption that the two outside lanes of this four lane highway were parking lanes, and that only the two inside lanes were used for vehicular traffic, whereas this question was at least one of fact to he decided by the jury.
In Moore v. Virginia Transit Company, 188 Va. 493 , 50 S. E. 2d. 268, it was held that a statute requiring lights to be exhibited on vehicles stopped on a highway was applicable to a vehicle parked on a city street, and that the defense that there was a city ordinance providing otherwise was an affirmative one to be established by the defendants.
The Legislature of this State, at its Regular Session, 1951, by Chapter 129, amended Chapter 17 of the Code, as theretofore amended, which is titled “Roads and Highways” and added three new chapters, 17A, 17B and 17C, thereby completely reenacting the Motor Vehicle Law of this State as it then existed, and adding many new provisions. These four chapters cover one hundred and thirty-six pages of Michie’s West Virginia Code of 1955. This Act is so comprehensive that it is sometimes referred to as the Motor Vehicle Code, and the legislation closely follows that of many other states and is also often referred to as the Uniform Motor Vehicle Law. Code references hereinafter will be to Michie’s West Virginia Code of 1955. Strangely enough, after nine years of the operation of this act, this Court has had occasion to construe few of the new provisions. That is true with reference to certain sections which are pertinent to the issues in this case.
Reverting to the question of this collision having occurred within the limits of the City of Beckley, but near the northern boundary of that city, 17C-2-7, is *26 succinctly in point: “The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any ordinance, rule, or regulation in conflict with the provisions of this chapter unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this chapter.” (Italics supplied.) 17C-2-8, authorizes local authorities, with respect to streets and highways under their jurisdiction, and within the reasonable exercise of police power, to regulate “the standing or parking of vehicles.” The only ordinance of the City of Beckley to which reference is made in this record is one prohibiting the parking of motor vehicles on the streets of that city for a continuous period of twenty-four hours. It seems clear then that all of the provisions of the Code which are pertinent to a determination of the issues being reviewed in this Court are just as applicable to the highway in question at the point where the collision occurred as they would have been a few hundred feet north after that highway left the city limits of Beckley. It is also clear from this record that the point where this collision occurred was not in a business district, as defined by 17C-1-45, nor a residential district, as defined by 17C-1-46. Defendants’ map, Exihibit No. 1, is conclusive on that point. The witness, Jess Williams, a police officer of the City of Beckley, in his answer to a question by counsel, describes the area in which this truck was parked as: “Setting under the bank and the shrubbery and trees, which were on the bank, the light by being hooded as it was seemed to throw the light down into the bed of the truck, and it fused a shadow out over the road, which made it very difficult to see the truck, ■even the outline of the truck.”
Article 13 of Chapter 17C is titled: “Stopping, 'Standing and Parking.” The Court seems to have Ignored the first section of that article which is of *27 particular pertinence, and it reads in part as follows: “(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, * * Subsection (b) excepts from this prohibition only the driver of a vehicle which is disabled while on the highway in such a manner that it is impossible to avoid stopping and temporarily leaving the disabled vehicle in such position. As to whether the defendants ’ truck was parked on a “main-traveled part of the highway”, police officer Williams was asked these questions and made these answers:
Q: “Mr. Williams, in addition to Valley Drive being within the corporate limits of the City of Beck-ley, is it also a state highway?
A: “Yes.
Q: ‘What highway is it?
A: “Sixteen.
Q: “Mr. Williams, you have described the cement portions of this highway as being four in number, and you have given the width of each of those cement portions. I will ask you now whether or not the entire forty-foot width of the highway is travelled portions of the highway?
A: “Yes.”
It is true that this witness and others stated that motor vehicles were often parked in the vicinity of the place where this collision occurred, particularly in front of a church which was approximately two or three hundred feet north of the scene of the collision, and on the opposite side of the highway, but, if the statute prohibited parking in .that area, these defendants could acquire no prescriptive right to violate such statute because others had done so.
Furthermore, I am of the opinion that it was not error to give Plaintiff’s Instruction No. 9. It is quoted *28 in fnll in the majority opinion and will not be again quoted here. This instruction follows the language of 17C-15-15, which provides that when a vehicle is parked upon a road, or shoulder adjacent thereto, during the hours between a half hour after sunset and a half hour before sunrise, and there is not sufficient light to reveal a person or object within a distance of five hundred feet upon such highway, the vehicle must be equipped with lamps which shall exhibit a white light visible for five hundred feet to the front, and a red light visible from a distance of five hundred feet to the rear of such vehicle. There is no denial in the testimony that this collision occurred more than a half hour after sunset; that there were no lights front or rear being exhibited on the truck, and the evidence was overwhelming, if not uncontradicted, to the effect that at the time of the collision, and very shortly thereafter, the illumination from the hooded 189 watt street light was not sufficient “to render clearly discernible persons and vehicles on the highway at a distance of five hundred feet.” However, this Court in deciding this case has, by some complex reasoning that I cannot follow, “amended”, or perhaps “repealed”, this section. It is the decision of the Court that I am complaining of, and not the opinion which carefully follows the decision in this regard and otherwise.
This is the reasoning by which the Court permitted these defendants to escape the liability imposed by this section: It read 17C-15-15, entitled “Equipment”, in pari materia with 17C-15-2 and 17C-15-3, the titles of which are, respectively: “When Lighted Lamps Are Required” and “Visibility Distance And Mounted Height Of Lamps”. 17C-15-2, provides that during the hours of darkness vehicles on the highways shall have lights that are visible for a distance of five hundred feet. 17C-15-3, provides that lights shall be of a type and brightness to be visible for a distance of five hundred feet upon a straight, level highway under normal atmospheric conditions. The Court concludes *29 that these two sections qualify the meaning of 170-15-15, to the extent that if visibility is reduced by fog, or snow, or rain, or other adverse atmospheric conditions, to the point where lights of a parked vehicle cannot be seen for a distance of five hundred feet, it is unnecessary to turn them on at all. Furthermore, it extends this reasoning to the illumination cast by the street lights, and holds that if this truck could have been seen for a distance of five hundred feet under normal atmospheric conditions by the glow cast from the street lights, if adverse weather conditions reduced vision to less than five hundred feet, then the defendants were justified in not having lights on their parked vehicle.
The State of Washington has a statute identical with the provisions of 17C-15-15. It was construed by the Supreme Court of that state in Rowe et ux. v. Safeway Stores, Inc., et al., 14 Wash. 2d. 363, 128 Pac. 293 . The driver of a truck while travelling within the city limits of Olympia encountered fog which reduced visibility to about forty feet. He pulled his vehicle upon the gravel adjoining the paved street because of difficulty in driving with such reduced visibility, but the body of the truck extended about eight feet upon the pavement. The driver of a passenger vehicle proceeding at about fourteen miles an hour struck the rear of the truck injuring his wife, the plaintiff, who was a passenger. An instruction similar to Plaintiff’s Instruction No. 9 was refused by the trial court, and the jury returned a verdict for the defendant. Upon a motion to set aside the verdict and grant the plaintiff a new trial, the trial judge ruled that he had committed error in not giving this instruction and granted the motion. In this action, he was affirmed by the Supreme Court of Washington. The court said in part, in holding that plaintiffs were entitled to an instruction substantially in the language of the statute: “No issue was raised at the trial as to whether or not appellants’ trailer tail light was of sufficient brightness or intensity to meet the statu *30 tory requirement. The only conflict in the testimony on that phase of the case was as to whether the tail light was on or off. The jury should have been instructed that the law required it to be on. Nor do we think that the jurors would have been misled by the form of the requested instruction. Surely, we should not assume that they would have been so stupidly impractical as to conclude that the language of the statute embodied in the proposed instruction requires motor vehicles to be equipped with tail lights capable of being seen from a point five hundred feet to the rear under all conditions, regardless of intervening physical obstacles to light, such as fog, falling snow, or other vehicles traveling on the highway.” I have no comment as to the interpretation which the majority of this Court have placed upon the Rowe case, except to say that I do not agree with their conclusion regarding that decision.
As stated in the Court’s opinion, the declaration in this case is in three counts, and, in addition to charging the defendants with negligence by way of the violation of certain statutes, charges them as well with “common law” negligence. Pursuant to the latter allegation of negligence, the trial court gave Plaintiff’s Instruction No. 7, not criticized in the majority opinion, which reads as follows: “The Court instructs the jury that if you believe from the evidence that the defendants, Penn Line Service, Inc., a corporation, and J. W. Hosey, parked the truck in question in or at the end of a curve in the highway, in such manner that it obstructed a traveled portion of said highway, and that they allowed it to remain in that position during the hours of darkness, and in prevailing conditions of fog or rain which were such as to limit the visibility of other motorists using said highway, and if you believe that a reasonably prudent person would have anticipated that that situation would create a danger to the safety of such other motorists, then those defendants were guilty of negligence, and if you believe that such negligence was the proximate *31 canse of plaintiff’s injuries, you should find for Flora Robinson against those defendants, unless Flora Robinson and [sic] guilty of negligence.” The evidence, in my opinion, fully justified the giving of this instruction, and the verdict of the jury for the plaintiff against these two defendants, assuming that there was no statutory violation which in this jurisdiction is prima facie evidence, of negligence. The majority of the states hold such violation to be negligence per se.
Briefly, these are the facts which, in my view of the record, support the verdict, assuming no statutory violation: The defendant Hosey was in charge of the truck for the Penn Line Service, Inc., a Pennsylvania Corporation. He found the weather so adverse on the morning preceding this collision that he and his men were unable to work upon the contract which his employer had, and in which these men had been engaged for a considerable length of time in Raleigh County. It appears from the record that the truck had usually been stored at night at a gasoline service station several hundred feet north of the point of the collision, and I think the inference is clear that, because Hosey purchased gasoline and had the truck serviced at this station, he was allowed to park on their lot without charge. On this particular morning, however, the lot was full and Hosey found it necessary to find another place to “store” the vehicle until seven or eight o’clock the following morning when the men would resume their work if the weather permitted. Hosey and his associates decided to return to their homes in the neighboring county of Summers to spend the day and night. Instead of taking the truck to a garage or parking lot, he parked it at about ten o’clock in the morning of that day at the place where the collision occurred about eight or nine hours later. One of the other men drove a passenger car to the place where the truck was parked, and from there they went to the vicinity of Hinton, in Summers County, returning at about eight o’clock the following' morning to find the collision had occurred *32 in their absence. Tbe evidence is clear to me, as it must bave been to tbe jury, tbat Hosey cbose about tbe most hazardous place on Valley Drive to park tbe truck. He parked tbe truck near tbe end of a right-hand curve, as tbe highway is viewed from tbe City of Beckley toward tbe north, and at a point where tbe vision of motorists travelling in tbat direction is limited by tbe only building in tbe immediate vicinity, on tbe right-hand side of tbe highway, which is a garage apartment building close to tbe right-hand side of tbe road. While be parked tbe truck under a street light containing a 189 watt bulb, tbe evidence of tbe police officer, which has heretofore been quoted, shows tbe inadequacy of tbe light which was thrown into tbe bed of tbe truck and ‘ ‘ fused a shadow out over tbe road, which made it very difficult to see tbe truck, even tbe outline of tbe truck.” Tbe uncontradicted testimony of a witness who measured tbe truck shows tbat it was seven feet and eleven inches wide, which is one inch short of tbe maximum width permitted by statute in this State. As stated in the majority opinion, there was a tool box on tbe left side of tbe truck “containing pruning poles attached to and extending a distance of ten inches from the left side of the body of the truck along most of the bed.” However, by viewing Defendants’ Exhibit No. 7, which admittedly does not purport to portray the truck in the position in which it was parked at the time of the accident, it is stated in the majority opinion that the tool box was set on a ledge of the bed of the truck in such a manner that it was practically all within the slight overlap at the left side of the rear wheels. Three eleven foot poles contained in this tool box were broken by the collision, and it seems clear that a piece of wood subsequently taken from behind the left eye of the plaintiff, and which is an exhibit, came from one of these broken poles. Witnesses found a broken pole near the scene of the collision soon after it occurred. The defendant Hosey says he found three broken poles when he returned to his truck the following morning. In view of the state of the weather *33 on the day Hosey parked the truck, the time of the year being February, and his knowledge of the climate in that area in the winter season, it is my view of this case that the jury was justified in finding that a reasonably prudent man should have foreseen that one of the thousands of motorists, who would pass that way during the day and night while the truck was parked, without lights, might collide with it and cause injury to the driver or a passenger in such vehicle. Particularly is this so in view of the fact that the truck was an outsize vehicle, extending in width perhaps two feet beyond what could reasonably be expected.
If I understand the Court’s position with reference to proximate cause, and its application to the facts in this case, it is my opinion that, without saying so, the Court has overruled several of its previous decisions. In the opinion, the Court said: “* * * It will be seen from the authorities cited in cases similar to the one presented here that even though the parking of the vehicle by the defendants violated the statute, or if they were guilty of common law negligence in so parking, there can be no recovery where an automobile runs into a parked vehicle, because the sole proximate cause of such accident is the driving of the automobile into the parked vehicle when the driver saw or should have seen the parked vehicle.”, and further, the Court said: “ * • * * The negligent act, without which the injury to the plaintiff would not have resulted, was the driving of the vehicle in which the plaintiff was riding into the rear of the parked truck of Penn Line Service, Inc., and this was clearly the sole proximate cause of the accident in this case. * * *” Proximate cause is an elastic and mystical term that is meaningless unless it is applied to the facts of a particular case. While this Court has held that the proximate cause of an injury is the last negligent act contributing thereto without which such injury would not have occurred, it is well settled in this jurisdiction that where injury or wrongful death results from the concurring negligence of two parties *34 which., though independent of each other, when combined results in injury to or death of a third party, recovery may be had against either or all. Roush v. Johnson, 139 W. Va. 607 , 80 S. E. 2d. 857. Many cases are cited therein in support of that principle, but the Roush ease is interesting in that the negligent acts of the two defendants, which this Court held continued unbroken to the instant of the injury, occurred more than one year apart. I have found no case in this jurisdiction in which a plaintiff, a guest passenger in an automobile, injured as a result of a collision between his vehicle and a parked vehicle, was denied recovery on the ground that the sole proximate cause of his injury was the negligence of his driver. The rule laid down by this Court in the Roush case and Wilson v. Edwards, et al., 138 W. Va. 613 , 77 S. E. 2d. 164, both having been recently decided, as to concurrent negligence where a plaintiff has charged two or more persons with responsibility in an action of tort, clearly represents the majority view in this country.
In 38 Am. Jur., Negligence, § 64, the majority, if not almost the universal, view is stated: “In an action for injury alleged to be due to a neglect of duty on the part of the defendant, it is no defense that a similar duty rested upon another person. The negligence of one person is in no sense justified by the concurring negligence of another. In other words, where a defendant is guilty of negligence causing an injury, and the plaintiff is free of negligence contributing thereto, the fact that the negligence of a third person, who was not acting under the direction and control of the plaintiff, concurred with the defendant’s negligence does not relieve the defendant from liability for his negligence, provided the negligence of the defendant was an efficient cause, without which the injury would not have occurred. * * * ” “* * * The rule is that when an injury occurs through the concurrent negligence of two persons, and it would not have happened in the absence of the negligence of either per *35 son, the negligence of each of the wrongdoers will he deemed a proximate canse of the injury, although they may have acted independently of one another; and both are answerable, jointly or severally, to the same extent as though the injury were caused by his negligence alone, without reference to which one was guilty of the last act of negligence. * * *”
In 21 A.L.R. 2d., at Page 95, begins an annotation entitled: “Parked Automobile — Lights.”, and in the following one hundred and ten pages are cited innumerable cases in which recovery was had by a guest passenger, or, in some instances, by the operator of an automobile which collided with a vehicle parked on a public street or highway in the nighttime without displaying lights. However, to support its finding that, even though the defendants were guilty of negligence, such negligence was remote and the “intervening, efficient cause of the injury was the driving of the Canterbury car into the rear of defendants ’ truck, * * the Court cited C. & O. Ry. Co. v. Hartwell, 142 W. Va. 318 , 95 S. E. 2d. 462; Hartley v. Crede, 140 W. Va. 133 , 82 S. E. 2d. 672; Webb v. Sessler, 135 W. Va. 341 , 63 S. E. 2d. 65; Scott v. Engineering Co., 117 W. Va. 395 , 185 S. E. 553 ; and the Virginia case of Hubbard v. Murray, 3 S. E. 2d. 397. In none of these cases was the plaintiff a guest passenger in an automobile which collided with another vehicle, and all are distinguishable on their facts from the instant case. However, they are tort actions and the citing of them in this case calls for a brief review of the position of this Court in cases where a plaintiff charges two or more defendants with negligent acts causing injury to the plaintiff.
The declaration in the Webb case charged the operators of an airport, the pilot of an airplane and other defendants with negligence in causing the death of plaintiff’s decedent while lawfully parked in an automobile near the airport. The declaration alleged that the airport was built too near the highway in violation of Federal statutes, and that the pilot was negligent *36 in the operation of his airplane. This Court affirmed the action of the trial conrt in snstaining the demurrers of all of the defendants, except Lilly, the pilot of the airplane, upon the ground that the alleged acts of negligence of those defendants “are relegated to the position of being remote causes of the injury, and, therefore, do not constitute actionable negligence.” The 2nd. Syllabus Point reads: “The proximate cause of an injury is the last negligent act contributing thereto, without which the injury would not have resulted. ’ ’
In the Hartwell case, there were only two parties, the Railway Company and Hartwell, instituting counteractions of trespass on the case. The 2nd. Syllabus Point in the Webb case is quoted as the 3rd. Syllabus Point in the Hartwell case, and in the opinion is this statement: “* * * Therefore, we arrive at the inescapable conclusion that the last efficient proximate cause of the collision was the negligence of Irene Hartwell in driving her automobile off the crossing on the main lines of the railroad company. * * * ”
But consider the rule laid down in Snyder v. Philadelphia Company, 54 W. Va. 149 , 46 S. E. 366 , in which the plaintiff was injured, while driving his team of horses pulling a wagon loaded with baled hay, when the horses were frightened when an employee of the defendant company opened a valve of a pipe permitting gas to escape and thereby produced a loud hissing noise. The evidence showed that plaintiff also was negligent in driving his horses with a defective rein. A judgment in favor of the plaintiff was affirmed by this Court. The Court said in the opinion: “The proximate cause is not always that which is nearesi in time or place to the injury. The meaning of the maxim, causa próxima non remota spectatur is that the true cause of an injury is that which brings it about either by direct operation or by setting in motion other causes as instruments or agents operating under its dominant influence. * * and, quoting Phillips on Insurance, § 1132; “In case of the con *37 currence of different canses, to one of which it is necessary to attribute the loss, it is to he attributed to the efficient predominating peril, whether it is or is not in activity at the consummation of the disaster. ’ ’ "Whether the rule in the Webb case, and those cases that have followed its reasoning, can he distinguished from the Snyder case; whether the Wilson and Roush cases can be distinguished from the Webb case; and whether the instant case can he distinguished from the Wilson and Roush cases; are.certain to become matters of speculation by the bench and bar of this State.
In March, 1956, this Court decided the case of Walker v. Robertson, 141 W. Va. 563 , 91 S. E. 2d. 468, the 5th Syllabus Point of which reads: ‘ ‘ Concurring negligence relates to persons occupying the position of defendants and ‘Arises where the injury is approximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently.’ Black’s Law Dictionary, Fourth Edition, Page 1185.”
Scott v. Engineering Co., 117 W. Va. 395 , 185 S. E. 553 , is not in point. The defendant wrongfully parked his truck on the highway, and the plaintiff, without keeping a proper lookout, ran into it and got judgment for. damage to his automobile. The judgment was reversed by this Court for the reason that the plaintiff, as the Court said in the opinion, was guilty of negligence as a matter of law in driving to within thirty feet of the parked truck without observing it, when he admitted in his testimony that if he had been looking he could have seen the truck at a distance of one hundred and fifty feet. It was a simple case of contributory negligence, hut in the opinion the Court describes it as: ‘ ‘ * * * a happening distinctly intervening between the negligence of the defendant and the accident, without which the accident would not have happened. * * * ” The opinion further states: “* * * That negligence, having appreciably followed that of the defendant in point of time, was the inde *38 pendent efficient, or proximate, canse of the damage to the plaintiff’s car. * * *”
Hubbard v. Murray, 173 Va. 448 , 3 S. E. 2d. 397, is a case in which plaintiff’s decedent was killed by the alleged concurring negligence of the operators of a bns and a truck. The bus stopped at a place prohibited by statute, and the truck driver, observing that situation, had time to avoid a collision, but his brakes failed to hold and he collided with bus, glanced off, and ran into an oncoming automobile killing plaintiff’s decedent. This case is cited in 131 A.L.R., Page 565, under an annotation: “Stopping On Highway — Collision”, and a careful perusal of the other eases there cited shows that they may be distinguished from the instant case upon their facts. The case cited therein immediately following Hubbard v. Murray is Geisen v. Luce, 185 Minn. 479 , 242 N.W. 8 , in which it was held that, though the leaving of a disabled car on a highway was unlawful, a guest passenger in the car which collided with it could not recover against the owner of the disabled car where the accident was due to the negligence of the passenger’s driver in driving “at such a reckless and excessive rate of speed that he was forced to the shoulder to avoid striking defendant’s standing car.” However, beginning on Page 605 of the same annotation are cited many cases in which it was held that both the owner of the parked car and the driver or owner of the car which ran into it were concurrently negligent, and both would be liable in a proper case to a guest passenger in the car which collided with the parked vehicle.
The North Carolina case of Godwin v. Nixon, 236 N.C. 632 , 74 S. E. 2d. 24, relied on strongly by the Court in its opinion, also falls within one of two lines of decisions by the North Carolina Court, one holding that the sole proximate cause of such a collision is the negligence of the driver of the vehicle which collided with the parked vehicle, and the other line to the exact contrary. For a partial citation of the cases representing both views see Smith v. Grubb, et al., 238 *39 N.C. 665 , 78 S. E. 2d. 598. TMs seeming discrepancy may be resolved by reference to the opinion in Garner v. Pittman, 237 N.C. 328 , 75 S. E. 2d. 111, wherein the conrt approves the proposition that, where the facts are nndispnted and bnt one inference may be drawn from them, it is within the exclusive province of the court to determine whether the injury resulted from the negligence of one or the concurrent negligence of both of the parties.
Without attempting to review the innumerable cases upon this question, but most of which may be found in the citations contained in this dissenting opinion, it is my opinion that upon the facts of the instant case the Court has placed it in the wrong category when it is placed with those cases which hold that the negligence of the driver of the car colliding with the parked vehicle is “an intervening and efficient cause without which the collision would not have occurred. ’ ’, or that the negligence of the driver of the parked vehicle is “so remote” as not to have been a proximate cause of plaintiff’s injuries as a matter of law. A.L.B. Supplement Service, Vol. 2, p. 1809, 1812.
The recent decision of this Court of Wilson, Administratrix v. Edwards, et al., 138 W. Va. 613 , 77 S. E. 2d. 164, is controlling upon this question in my opinion, and is in accord with the great weight of authority in other jurisdictions. Briefly, these were the facts in the Edwards case: Corbin was the driver of a truck, owned by Edwards, who parked it on the berm of a highway at the end of a curve near his residence at 7:15 P. M., and went to his residence nearby and retired for the night. At about 11:30 o’clock the same night, plaintiff’s decedent, riding in a passenger vehicle with Simmons, was fatally injured when Simmons, travelling around the curve at such speed that he went onto the berm, collided with the parked truck. Shortly before, and to the knowledge of his guest passenger, Simmons had had a drink of whiskey and a glass of beer. This Court had no difficulty in sustaining a jury verdict against Edwards and Corbin, *40 there being such a verdict also against Simmons, bnt application was not made by him for a writ of error. This is the 3rd. Syllabus Point of that case: ‘ ‘ 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. ’ ’
In the even more recent case of Wolfe v. Beatty Motor Express, Inc., et al., 143 W. Va. 238 , 101 S. E. 2d. 81, this Court upheld on writ of error the action of the trial court in directing a verdict for the defendants, upon the ground that the conduct of the plaintiff in driving his vehicle into a trailer truck parked on the highway in darkness barred his recovery since his negligence contributed proximately to his injuries. The evidence showed that the trailer truck was parked on the surface part of the highway, but “as close to the curb as it could safely set.” The trailer truck was left in that position while the driver went into a gasoline service station to buy fuses and a bulb. While the plaintiff, who was the driver of the colliding-vehicle, was denied recovery, the Court had this to say about the conduct of the driver of the trailer truck: “The evidence clearly shows that the driver of the tractor-trailer was guilty of negligence in leaving his vehicle upon the paved portion of the highway, under the circumstances, and for the length of time related by the witnesses. That evidence establishes also that such negligence was a proximate cause of the injury to the plaintiff. No further reference need be made to that phase of the case. It is not enough, however, that the defendants’ negligence was a proximate cause of the injury to the plaintiff. It must have been the sole proximate cause. This Court has not recognized the rule of comparative negligence. Therefore, we are not at liberty to determine whether the negligence of the defendants was greater or less than that of the plaintiff, if the latter was negligent. * * *”
Darling v. Browning, et al., 120 W. Va. 666 , 200 *41 S. E. 737 , and Porterfield v. Suddeth, 117 W. Va. 231 , 185 S. E. 209 , are eases in which jury verdicts were upheld on writ of error by this Court in favor of guest passengers riding in automobiles which collided with trucks of the defendants “unlawfully” parked on city streets.
In Divita v. Atlantic Trucking Company, 129 W. Va. 267 , 40 S. E. 2d. 324, a passenger was denied recovery when injured by the collision of the vehicle in which he was riding with a truck “unlawfully” parked on a city street only because he was the owner of the vehicle in which he was riding, and his driver’s negligence was imputed to him.
It is interesting to note that all of those cases were decided prior to the enactment of Chapter 129, Acts of the Legislature, Regular Session, 1951, and at a time when the statute law of this State excluded the limits of municipalities from the prohibition against the parking of vehicles on the highway. In no similar case has this Court invoked the rule of “intervening acts of negligence”, or that the negligence of the plaintiff’s driver “superseded the negligence” of the defendants, or denied the plaintiff recovery because of the “remoteness” of the defendants’ negligence. To emphasize the Court’s departure, in the instant case, from the principles enunciated in those decisions, it may be noted that, the only reason why the defendant herein may not recover for the damage occasioned to its truck and equipment is that it failed to institute an action therefor. Reverting to the Edwards case, this Court rejected the contention of the plaintiff in error that the parking of the truck without lights was not a proximate cause of the fatal injury, 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, * *
While the Court does not specifically so hold, it intimates in its opinion that if the plaintiff were *42 otherwise entitled to a recovery, she might be barred therefrom by her contributory negligence. It would be difficult to reach such a conclusion without overruling the decisions of this Court in Darling v. Browning, et al., 120 W. Va. 666 , 200 S. E. 737 , and Porterfield v. Suddeth, 117 W. Va. 231 , 185 S. E. 209 . In the opinion in the Suddeth case, the Court said: “Was the plaintiff guilty of contributory negligence as a matter of law? We think not. Whether a passenger riding in an automobile driven by another exercises such care for his own safety as a reasonably prudent person would take under like circumstances, is generally a question of fact for the jury. * * *. The mere fact that the passenger is the wife of the driver does not change the formula. * * * . The rule applies in case of injury to a passenger resulting from a collision between the car in which he is riding and a motor vehicle standing on a highway without lights in smoke, fog, dust, mist or darkness. * * *” In the Browning case, the Court, referring to the rule that a guest passenger, who fails to protest the action of the driver in encountering a possible danger reasonably apparent to both, is ordinarily barred from recovery against the host, said: “This rule is meant to apply where there was an obvious or highly probable danger in the manner or circumstances of the operation of an automobile in which a guest was riding at the time of injury received. * * * ” The majority has rejected, without cause or explanation, the testimony of the driver of, and passengers in, the Canterbury automobile as well as other witnesses who testified for the plaintiff. The inferences favorable to the plaintiff to be drawn from the testimony by virtue of the verdict in her favor are ignored. The jury box, from which laymen flee in terror, sometimes holds a strange fascination for appellate judges.
In Yuncke v. Welker, 128 W. Va. 299 , 36 S. E. 2d. 410, many decisions of this Court are cited in support of certain principles about which I trust there can be no dispute. Questions of negligence and contributory *43 negligence are for the jury; to weigh the evidence and to resolve questions of fact when the oral testimony of witnesses regarding them is conflicting is peculiarly the province of the jury and should not be disturbed by the Court; the jury are the sole judges of the credibility and the value of conflicting testimony of witnesses ; and where the facts are controverted the question of negligence is for jury determination.
I would affirm the judgment of the Circuit Court of Raleigh County entered upon the jury verdict for the plaintiff.