Metro v. Smith

GtveN, Judge: John Douglas Metro, an infant seventeen years of age, instituted an action in the Circuit Court of Raleigh County, against William F. Smith, Jr., for recovery of damages for personal injuries alleged to have resulted from negligent operation of an automobile by defendant. Another action was instituted against the same defendant by Anna Metro, mother of the infant, for recovery of medical and hospital expenses necessarily incurred in treatment of the injuries to the infant growing out of the accident. The cases were consolidated, and a verdict was returned in the principal case for plaintiff in the amount of $3,500.00, and in the other case for the amount of $1,399.30. Judgments in the amounts of the respective verdicts were entered against the defendant, The same principles are controlling as to each judgment. The accident occurred on March 19, 1960, about ten o’clock P.M., on U. S. Route No. 21, between Beckley and Mt. Hope. A vehicle in which the infant plaintiff was riding was traveling in a northerly direction, in a direction toward Mt. Hope. The vehicle belonged to the mother of the infant plaintiff, and was being operated by his sister. In addition to the infant plaintiff and his sister, three other persons were passengers in the vehicle, usually' referred to as the Metro car. The — 985 — other vehicle, owned and then being operated by defendant, was traveling in a southerly direction, toward Becldey. One passenger was riding with defendant. The accident occurred near the top of a hill, a distance of approximately forty or fifty feet from the top, after the defendant’s car had crossed the hill and descended that distance. A heavy snow was falling at the time, interfering greatly with visibility. The road was covered with snow and was very slippery. It is not disputed that one automobile, in front of the Metro car, had stalled because of the slippery condition of the road, causing the Metro car to come to a stop just behind it. The infant plaintiff and two other passengers of the Metro car assisted in pushing the stalled car to the top of the hill, and had returned to the Metro car and were attempting to push it up the hill when the infant plaintiff was struck by the defendant’s car. There exists a conflict in the evidence as to the position of the infant plaintiff at the time he was struck. His evidence is to the effect that at that time he was immediately to the rear of the left rear fender of the Metro car, pushing, or just ready to begin pushing, the Metro car. The evidence of defendant is to the effect that the infant plaintiff was to the. left of the Metro car, with his body extending beyond the left of the center of the highway, or in the path of the defendant’s car. Defendant’s evidence is to the effect that he did not see the infant plaintiff until he emerged from the rear, or from a point near, the Metro car, into the path of defendant’s car, three or four feet before the point at which he was struck, too late for defendant to have avoided striking him. To some extent, at least, defendant’s testimony in this respect is corroborated by the witness who was a passenger in defendant’s car. Defendant also strongly contended, and some evidence would tend to support the contention, that the Metro car was to its left of the center of the highway, making it necessary for the defendant to drive his own car onto the berm in order to avoid a collision with the — 986 — Metro car, and that in doing so Ms own car was unavoidably caused to skid, resulting in the collision. The evidence of the plaintiffs, however, strongly indicates that the Metro car was on its right side of the highway and that it was not at an angle across the highway, as contended by defendant. On further cross-examination, the infant plaintiff was asked certain questions, and made answers thereto, as follows: “Q. * * * which way were you looking as you stood back there half way behind the car and half way out? A. Well, I must have had my head down because I wasn’t looking straight ahead. Q. You wasn’t looking straight ahead of you? A. No, sir, if I had, I could have seen Mr. Smith coming. Q. But you weren’t looking straight ahead? A. No. Q. And you did’t see him coming? A. No. Q. Now, it you had seen him coming, you could have stepped back behind the car and been safe? A. Yes. Q. You didn’t make any attempt to get back behind the car, did you? A. As soon as I looked up, there he was. I didn’t have a chance to say scat. Q. How close to you was the Smith car when you first saw it? A. I guess it was about two or three feet maybe. Q. Two or three feet? A. Yes, sir. Q. Now, if you had been looking you could have seen it as it first came over the top of the hill, couldn’t you? A. Yes.” It is vigorously contended by defendant that the testimony of the infant plaintiff just quoted establishes, as a matter of law, that he was contributorily negligent, that such negligence contributed proximately to the injuries, and that the trial court should have instructed the jury to find for defendant. We are of the opinion, however, that the question of contributory negligence of the infant plaintiff was one for the jury. In Davis v. Sargent, 138 W. Va. 861, 78 S. E. 2d 217, we held: “3. 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. ’ ’ — 987 — Though the testimony of the infant plaintiff could have served as the basis for a finding of contributory negligence, the jury was entitled to consider the other evidence, especially that relating to the weather and road conditions, the position of the Metro car, the position of the infant plaintiff at or near the time of the accident, and the necessity for the efforts in the attempt to move the Metro car up the hill. If’ the jury believed, as they had a right to do, that the Metro car and the Metro boy, at the time of the accident, were entirely to their right of the center of the highway, they would be justified in finding that the boy was not negligent, though the facts testified to by him were true. Clearly, reasonable minds might differ as to whether all of the facts, in the circumstances of the particular case, indicated that the infant plaintiff was using ordinary care in attempting to push the Metro car. Most certainly, “reasonable men may draw different conclusions” as to the effect of such facts, or even as to the facts admitted by the infant plaintiff, in the circumstances of the instant case. See Isgan v. Jenkins, 134 W. Va. 400, 59 S. E. 2d 689; Davis v. Pugh, 133 W. Va. 569, 57 S. E. 2d 9; Tuncke v. Welker, 128 W. Va. 299, 36 S.E. 2d 410. The only other error assigned as ground for reversal of the judgments complained of relates to the action of the trial court in giving plaintiffs’ Instructions A, B and D. The complaint as to each instruction relates to the same principle, and is based on language found in Instruction A, or language to the same effect in Instructions B and D. Instruction A told the jury that if the “ * * * conduct on the part of the defendant contributed proximately to the Metro boy’s injuries, then you may find in favor of plaintiff against defendant in each action, unless you further believe that the Metro boy, at the time of the accident, was not using due care in his own behalf. ’ ’ (Emphasis supplied). The contention is made that the language quoted permits the jury to find for the plaintiffs even though the negligence of the infant plaintiff contributed proxi — 988 — mately to tbe cause of tbe injury, and reliance is bad on tbe bolding in Johnson v. Majestic Steam Laundry, 114 W. Va. 352, 171 S. E. 902. There we held: “2. An instruction wbicb in effect tells tbe jury that if they believe from a preponderance of tbe evidence, tbat tbe negligence of defendant contributed to tbe accident causing injury they may find for plaintiff is prejudi-cially erroneous.” Tbe instruction there considered actually told tbe jury tbat if they believed tbat tbe defendant “ * * * did not keep said automobile then and there being driven by him as far to tbe right on said highway as was reasonably possible, and tbat bis failure to do so was tbe cause of tbe accident, or contributed to tbe accident in question, it is your duty to find for tbe plaintiff, unless you shall further believe tbat the defendant in said meeting did not keep bis automobile to bis right on tbe highway as far as was reasonably possible} or was guilty of other contributory negligence.” In tbe opinion tbe Court stated: “This instruction tells tbe jury tbat they may find for tbe plaintiff if the negligence of tbe defendant contributed to the accident, unless they further believe tbat tbe defendant did not keep bis automobile as far as reasonably possible to tbe right on the roadway. If tbe language ‘unless .you. shall further believe tbat tbe defendant’, etc., bad been stated correctly to read ‘plaintiff’ instead of ‘defendant’, then it might be said tbat tbe part of tbe instruction which follows would correct, or, at least, nullify tbe error which exists in, tbe first part telling tbe jury tbat tbe contributory negligence of tbe defendant is a sufficient basis of recovery. (Emphasis not supplied). Perhaps, through inadvertence tbe word ‘defendant’ in tbe instruction has been placed where tbe word ‘plaintiff’ should appear. This confusion in tbe latter part of tbe instruction prevents tbat part from clarifying what goes before. Tbe part of tbe instruction tbat makes it possible for tbe jury to find for tbe plaintiff if it believes tbe defendant guilty of contributory negligence is manifestly erroneous. It makes recovery possible with tbe contributory negligence of plaintiff admitted * * — 989 — The principle, though correctly applied in the cited case, does not control in the instant case. Here one of the principal defenses relied on was that the negligence of the driver of the Metro car cansed or contributed to the injuries, the contention being that the injuries were the result of the combined or concurrent negligence of the defendant and the driver of the Metro car. In other words, the injuries were the result of negligence of joint tort feasors. Only one of the supposed joint tort feasors, however, was proceeded against. This Court has held that “ Concurrent negligence creates joint liability”. Point. 1, Syllabus, Baker v. City of Wheeling, 117 W. Va. 362, 185 S. E. 842. In Starcher, Adm., etc. v. South Penn Oil Co., 81 W. Va. 587, 606, 95 S. E. 28, quoting with approval from Thompson on Negligence, ■ Section 7435, this Court stated: “If the concurrent negligence of two or more persons combined together results in an injury to a third person he may recover from either or all. And in determining the liability of either of two persons whose concurrent negligence results in injury, the comparative degrees of negligence are not to be considered, each being liable for the whole even though the other was equally culpable, or contributed in a greater degree to the injury, or the proportion in which the negligence of each contributed to the injury, or the degrees of care used, is not to be considered. And where the negligent conduct of several at the same time and place combined in causing an injury, they acting in concert, all are liable, although they did not conduct themselves negligently by preconcert. So where the injury is the result of the neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them, they may be sued jointly. Nevertheless in order to create a joint liability for an injury the negligent acts of the parties sought to be charged must have concurred in producing it”. See Sigmon v. Mundy, 125 W. Va. 591, 25 S. E. 2d 636; New River and Pocahontas Coal Company v. Eary, 115 W. Va. 46, 174 S. E. 573; — 990 — Johnson v. Chapman, 43 W. Va. 639, 28 S. E. 744; 18 M. J., Torts, Section 3; 86 C.J.S., Torts, Section 34, et seq. Of conrse, the negligence which renders a defendant liable for damages must be a proximate, not a remote, canse of injury, and where the alleged negligence involves only one defendant it must have constituted the sole cause of the injury. Obviously, however, where two or more persons, as joint tort feasors, through concurrent negligence, cause the injury, the “sole” negligent activity of one of them is not the sole cause of the injury, though all or any one of them may be liable for the whole damages. In such instances, and the facts of the instant case bring it within the rule, the mere fact that the negligence of a joint tort feasor contributed to the injury can not defeat the right of the plaintiff to recover against the other joint tort feasor, and it was not error to so instruct the jury. In truth, it would have constituted prejudicial error to have instructed the jury that, to entitle plaintiffs to a recovery, the sole negligence of the defendant Smith must have constituted the “sole” cause of the injuries. See Hartley v. Crede, 140 W. Va. 133, 82 S. E. 2d 672; Roush v. Johnson, 139 W. Va. 607, 80 S. E. 2d 857; Wilson v. Edwards, 138 W. Va. 613, 77 S. E. 2d 164; Brewer v. Appalachian Constructors, Inc., 135 W. Va. 739, 65 S. E. 2d 87; Sheff v. City of Huntington, 16 W. Va. 307. In the Brewer case we cited with approval the following statement from 65 C.J.S., Negligence, Section 110: “The negligence of the defendant need not be the sole cause of the injury, it being sufficient that it was one of the efficient causes thereof, without which the injury would not have resulted; but it must appear that the negligence of the person sought to be charged was responsible for at least one of the causes resulting in the injury. ’ ’ Moreover, in the instant case the instruction contained clarifying language which told the jury that the plaintiffs could not recover if the jury believed that the “Metro boy, at the time of the accident, was not using due care in his own be — 991 — half”, and defendant’s Instruction No. 1 told the jury that the Metro boy could not recover if the combined negligence of the defendant and the Metro boy “contributed to cause the accident”, and defendant’s Instruction No. 3 told the jury that if the Metro boy “was guilty of any negligence which proximately contributed to the accident”, the verdict should be for the defendant. If it be admitted that plaintiffs’ Instructions A, B and D contain statements which, standing alone, probably were confusing, any such confusion was eliminated by consideration of the entire instructions, including instructions given on motion of defendant. "While it is true that an error created by a bad instruction can not be eliminated by the giving of a good instruction covering the same principle, State v. Garner, 97 W. Va. 222, 124 S. E. 681, it is also true that, as this Court has many times held, instructions should be read as a whole and, “3. Although an instruction standing alone may have been misleading, the verdict of the jury will not be disturbed on its account where the objection was removed by the giving of other consistent instructions.” Hesson v. Penn Furniture Co., 70 W. Va. 141, 73 S. E. 302. See Frasier v. Grace Hospital, Inc., 117 W. Va. 330, 185 S. E. 415; Wills v. Montfair Gas Coal Co., 104 W. Va. 12, 138 S. E. 749; State v. Snider, 81 W. Va. 522, 94 S. E. 981; Neil v. West Virginia Timber Co., 75 W. Va. 502, 84 S. E. 239; Stewart v. Parr, 74 W. Va. 327, 82 S. E. 259; Connolly v. Bollinger, 67 W. Va. 30, 67 S. E. 71; Lay v. Elk Ridge Coal and Coke Co., 64 W. Va. 288, 61 S. E. 156; State v. Cottrill, 52 W. Va. 363, 43 S. E. 244. Though objection was made to plaintiffs’ Instructions A, B and D, for the reason that they do not “sufficiently negative contributory negligence”, no point of error is assigned in relation to such objection. Moreover, counsel for defendant, in the oral argument before this Court, we think, correctly, conceded that such question was not involved. As will be noticed from the language quoted, the instruction did — 992 — ■unequivocally inform the jury that plaintiffs could not' recover if the Metro boy failed to use “due care in his own behalf” at the time of the accident. Finding no reversible error, the judgments complained of must be affirmed. Affirmed.