binding instruction in West Virginia

1996Syl. pt. 3, Lambert v. Great Atlantic & Pacific Tea Co., 155 W.Va. 397 , 184 S.E.2d 118 (1971), states: Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.

1996Syl. pt. 3, Lambert v. Great Atlantic & Pacific Tea Co., 155 W.Va. 397 , 184 S.E.2d 118 (1971), states: Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.

1998A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties."); Syl. pt. 2, Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492 , 345 S.E.2d 791 (1986) ("`Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.' Syl.

1998A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties."); Syl. pt. 2, Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492 , 345 S.E.2d 791 (1986) ("`Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.' Syl.

1994We said in Syllabus Point 3 of Lenox v. McCauley, 188 W.Va. 203 , 423 S.E.2d 606 (1992): “ ‘ “Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be distrubed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.” Syl.Pt. 3, Lambert v. Great Atlantic & Pacific Tea Company, 155 W.Va. 397 , 184 S.E.2d 118 (1971).’ Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492 , 345 S.E.2d 791 (1986).” See also

1994We said in Syllabus Point 3 of Lenox v. McCauley, 188 W.Va. 203 , 423 S.E.2d 606 (1992): “ ‘ “Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be distrubed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.” Syl.Pt. 3, Lambert v. Great Atlantic & Pacific Tea Company, 155 W.Va. 397 , 184 S.E.2d 118 (1971).’ Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492 , 345 S.E.2d 791 (1986).” See also

1997As we further held in syllabus point six of Michael v. Sabado, 192 W.Va. 585 , 453 S.E.2d 419 (1994): “ ‘ “Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while *619 standing alone.” Syl.

1997As we further held in syllabus point six of Michael v. Sabado, 192 W.Va. 585 , 453 S.E.2d 419 (1994): “ ‘ “Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while *619 standing alone.” Syl.

1994The instruction was not a binding instruction and clearly fell within the limits set out in syllabus point 3 of Jordan v. Bero, 158 W.Va. 28 , 210 S.E.2d 618 (1974): “If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.” Syllabus point 5, Lancaster v. Potomac Edison Company of West Virginia, 156 W.Va. 218 , 192 S.E.2d 234 (1972); syllabus point 7, Lawrence v. Nelson, 145

1994The instruction was not a binding instruction and clearly fell within the limits set out in syllabus point 3 of Jordan v. Bero, 158 W.Va. 28 , 210 S.E.2d 618 (1974): “If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.” Syllabus point 5, Lancaster v. Potomac Edison Company of West Virginia, 156 W.Va. 218 , 192 S.E.2d 234 (1972); syllabus point 7, Lawrence v. Nelson, 145

1972In the ninth point of the syllabus of Graham v. Wriston, 146 W.Va. 484 , 120 S.E.2d 713 , this Court held that if a binding instruction clearly negatives contributory negligence, the instruction need not specifically state the conduct or the acts of the plaintiff which are alleged to constitute such contributory negligence.

1972In the ninth point of the syllabus of Graham v. Wriston, 146 W.Va. 484 , 120 S.E.2d 713 , this Court held that if a binding instruction clearly negatives contributory negligence, the instruction need not specifically state the conduct or the acts of the plaintiff which are alleged to constitute such contributory negligence.

1994The instruction was not a binding instruction and clearly fell within the limits set out in syllabus point 3 of Jordan v. Bero, 158 W.Va. 28 , 210 S.E.2d 618 (1974): “If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.” Syllabus point 5, Lancaster v. Potomac Edison Company of West Virginia, 156 W.Va. 218 , 192 S.E.2d 234 (1972); syllabus point 7, Lawrence v. Nelson, 145

1994The instruction was not a binding instruction and clearly fell within the limits set out in syllabus point 3 of Jordan v. Bero, 158 W.Va. 28 , 210 S.E.2d 618 (1974): “If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.” Syllabus point 5, Lancaster v. Potomac Edison Company of West Virginia, 156 W.Va. 218 , 192 S.E.2d 234 (1972); syllabus point 7, Lawrence v. Nelson, 145

1992In syllabus point 3 of Nesbitt v. Flaccus, 149 W.Va. 65 , 138 S.E.2d 859 (1964), we stated: A binding instruction which directs the jury to find for a party if it believes that certain facts therein enumerated are established by the evidence must not omit any fact essential to such finding, and such instruction must be complete in itself and can not be supplemented by other instructions given.

1992In syllabus point 3 of Nesbitt v. Flaccus, 149 W.Va. 65 , 138 S.E.2d 859 (1964), we stated: A binding instruction which directs the jury to find for a party if it believes that certain facts therein enumerated are established by the evidence must not omit any fact essential to such finding, and such instruction must be complete in itself and can not be supplemented by other instructions given.

1972Moore v. Hutchinson, 107 W.Va. 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.

1972Moore v. Hutchinson, 107 W.Va. 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.

1969In the opinion the Court cites Curfman v. West Penn, 113 W.Va. 85 , 166 S.E. 848 , and it is interesting to compare the Curfman case with Nichols v. Mining Company, heretofore cited, both reported in the same volume of the West Virginia Reports.

1969Va. 537 , 109 S. E.2d 144 , this is the seventh syllabus point: “An instruction containing the word ‘may’, telling the jury that it may find a verdict for one of the parties, is a permissive and not a binding instruction, and it is not error to give such instruction even though it omits facts necessary for the theories of both parties if other instructions given by the court instruct the jury fully and fairly with the regard to same.” (Emphasis added.) In the opinion the Court had this comment with regard to the giving of plaintiff’s instruction No. 3: “The only ground relied on by the trial c

1933Blackwood v. Traction Co., 96 W.

1929Blackwood v. Monongahela Valley Traction Company, 96 W.

1969It is not error for a trial court to amend such defective, binding instruction so as to make it permissive instead of imperative." This clearly erroneous holding was expressly disapproved in point 10 of the syllabus and is condemned by point 9 of the syllabus in Graham v. Wriston, 146 W.Va. 484 , 120 S.E.2d 713 , in this language: "If a binding instruction for the plaintiff clearly negatives contributory negligence, it need not specifically state the conduct or acts of the plaintiff which are alleged to constitute such contributory negligence." The erroneous holdings of this Court with respect

1969It is not error for a trial court to amend such defective, binding instruction so as to make it permissive instead of imperative." This clearly erroneous holding was expressly disapproved in point 10 of the syllabus and is condemned by point 9 of the syllabus in Graham v. Wriston, 146 W.Va. 484 , 120 S.E.2d 713 , in this language: "If a binding instruction for the plaintiff clearly negatives contributory negligence, it need not specifically state the conduct or acts of the plaintiff which are alleged to constitute such contributory negligence." The erroneous holdings of this Court with respect

1991We summarized these principles in Syllabus Point 3 of Nesbitt v. Flaccus, 149 W.Va. 65 , 138 S.E.2d 859 (1964): “A binding instruction which directs the jury to find for a party if it believes that certain facts therein enumerated are established by the evidence must not omit any fact essential to such finding, and such instruction must be complete in itself and can not be supplemented by other instructions given.” See also Levine v. Headlee, 148 W.Va. 323 , 134 S.E.2d 892 (1964); McMicken v. Province, 141 W.Va. 273 , 90 S.E.2d 348 (1955), overruled on other grounds, Bradley v. Appalachian Pow

1961Va. 273, 284-85 , 90 S. E. 2d 348, 354 , in line with Payne v. The Virginia Railway, supra; Bragg v. Whitten Transfer Co., supra; and Skaff v. Dodd, supra, it was held that in a binding instruction offered in behalf of the plaintiff, the words “if you believe * * * the plaintiff was driving her own automobile on her own side of the road in a lawful maimer” were not sufficient to negative contributory negligence.

1991Whitten Transfer Co., 125 W.Va. at 727 , 26 S.E.2d at 220 , the general rule with regard to a binding instruction: “Plaintiff’s Instruction No. 6 directed the jury to find a verdict for the plaintiff if certain hypothetical facts were believed — in common parlance, it was a binding instruction. ‘It has been repeatedly held that it is improper for the court, in instructing a jury, to single out certain facts and instruct the jury, that if they are true, they must find for either of the parties in accordance with such facts, when there are other facts or evidence in the case bearing on the subje

1991Whitten Transfer Co., 125 W.Va. at 727 , 26 S.E.2d at 220 , the general rule with regard to a binding instruction: “Plaintiff’s Instruction No. 6 directed the jury to find a verdict for the plaintiff if certain hypothetical facts were believed — in common parlance, it was a binding instruction. ‘It has been repeatedly held that it is improper for the court, in instructing a jury, to single out certain facts and instruct the jury, that if they are true, they must find for either of the parties in accordance with such facts, when there are other facts or evidence in the case bearing on the subje

1974In Penix v. Grafton, 86 W.Va. 278 , 103 S.E. 106 (1920), it was stated that it “is error to give a binding instruction in favor of the plaintiff which does not require a finding by the jury upon a theory of defense which is presented and supported by evidence * * In the instant case there is evidence that the plaintiff acted in such a manner as to have delayed the defendant in making its decisions.

1974In Penix v. Grafton, 86 W.Va. 278 , 103 S.E. 106 (1920), it was stated that it “is error to give a binding instruction in favor of the plaintiff which does not require a finding by the jury upon a theory of defense which is presented and supported by evidence * * In the instant case there is evidence that the plaintiff acted in such a manner as to have delayed the defendant in making its decisions.

1961The earliest case cited was Woodell v. West Virginia Improvement Co., 38 W.Va. 23 , 17 S.E. 386 .

1961The earliest case cited was Woodell v. West Virginia Improvement Co., 38 W.Va. 23 , 17 S.E. 386 .

1961The majority opinion in the case of Walker v. Robertson, supra, states that a binding instruction such as the one therein involved must state "the negligent acts or conduct allegedly committed by the plaintiff as constituting contributory negligence." The Court held that the instruction was faulty in this respect, notwithstanding the fact that it contained the following language: "Therefore, you are instructed that if you find from the evidence that the plaintiff was guilty of committing any act of negligence, however slight, which proximately contributed to causing the injuries of which she c

1959It was so held in the case of Walker v. Robertson, 141 W.

1952Curry v. New Castle Auto Express, 112 W.Va. 268 , 164 S.E. 147 ; Stafford v. Chesapeake and Ohio Railway Company, 111 W.Va. 249 , 161 S.E. 447 ; McWhorter v. City of Clarksburg, 111 W.Va. 9 , 161 S.E. 577 ; Shaver v. Consolidation Coal Company, 108 W.Va. 365 , 151 S.E. 326 ; Shires v. Boggess, 72 W.Va. 109 , 77 S.E. 542 .

1933For the general proposition that it is prejudicial error to give a binding instruction on behalf of the plaintiff which ignores a material defense, and that the error is not cured by *638 other instructions, see Stafford v. Railway Co., 111 W.

2018Va. 97 , 459 S.E.2d 374 (“Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, [though] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.”) (internal quotations and citations omitted).

2018Va. 97 , 459 S.E.2d 374 (1995) ("Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, [though] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.") (internal quotations and citations omitted).

2004The Supreme Court of Appeals also stated that “[a] party is not entitled to rebut the presumption that a child between the ages of 7 and 14 is incapable of negligence with a binding instruction which focuses only on two factors, i.e., whether the child has been warned of the danger that caused his injury and whether the child was of sufficient intelligence to understand the danger.” Id. at 477 , Syllabus 4.

1994The instruction was not a binding instruction and clearly fell within the limits set out in syllabus point 3 of Jordan v. Bero, 158 W.Va. 28 , 210 S.E.2d 618 (1974): “If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.” Syllabus point 5, Lancaster v. Potomac Edison Company of West Virginia, 156 W.Va. 218 , 192 S.E.2d 234 (1972); syllabus point 7, Lawrence v. Nelson, 145

1994The instruction was not a binding instruction and clearly fell within the limits set out in syllabus point 3 of Jordan v. Bero, 158 W.Va. 28 , 210 S.E.2d 618 (1974): “If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.” Syllabus point 5, Lancaster v. Potomac Edison Company of West Virginia, 156 W.Va. 218 , 192 S.E.2d 234 (1972); syllabus point 7, Lawrence v. Nelson, 145

1992As this Court said in syllabus point 2 of Reager v. Anderson, 179 W.Va. 691 , 371 S.E.2d 619 (1988): “In a comparative negligence or causation action the issue of apportionment of negligence or causation is one for the jury or other trier of the facts, and only in the clearest of cases where the facts are undisputed and reasonable minds can draw but one inference from them should such issue be determined as a matter of law.

1992As this Court said in syllabus point 2 of Reager v. Anderson, 179 W.Va. 691 , 371 S.E.2d 619 (1988): “In a comparative negligence or causation action the issue of apportionment of negligence or causation is one for the jury or other trier of the facts, and only in the clearest of cases where the facts are undisputed and reasonable minds can draw but one inference from them should such issue be determined as a matter of law.

1992Pt. 1, Anderson v. Moulder, 183 W.Va. 77 , 394 S.E.2d 61 (1990).” Syllabus Point 2, Waugh v. Traxler, supra. 2 In Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492 , 345 S.E.2d 791 (1986), this Court stated: Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.

1992Pt. 1, Anderson v. Moulder, 183 W.Va. 77 , 394 S.E.2d 61 (1990).” Syllabus Point 2, Waugh v. Traxler, supra. 2 In Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492 , 345 S.E.2d 791 (1986), this Court stated: Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.

1991We summarized these principles in Syllabus Point 3 of Nesbitt v. Flaccus, 149 W.Va. 65 , 138 S.E.2d 859 (1964): “A binding instruction which directs the jury to find for a party if it believes that certain facts therein enumerated are established by the evidence must not omit any fact essential to such finding, and such instruction must be complete in itself and can not be supplemented by other instructions given.” See also Levine v. Headlee, 148 W.Va. 323 , 134 S.E.2d 892 (1964); McMicken v. Province, 141 W.Va. 273 , 90 S.E.2d 348 (1955), overruled on other grounds, Bradley v. Appalachian Pow

1991We summarized these principles in Syllabus Point 3 of Nesbitt v. Flaccus, 149 W.Va. 65 , 138 S.E.2d 859 (1964): “A binding instruction which directs the jury to find for a party if it believes that certain facts therein enumerated are established by the evidence must not omit any fact essential to such finding, and such instruction must be complete in itself and can not be supplemented by other instructions given.” See also Levine v. Headlee, 148 W.Va. 323 , 134 S.E.2d 892 (1964); McMicken v. Province, 141 W.Va. 273 , 90 S.E.2d 348 (1955), overruled on other grounds, Bradley v. Appalachian Pow

1991Had the jury been properly instructed, it conceivably would have found no contributory negligence on the part of the infant plaintiff. 3 Our traditional rule regarding the impact of an erroneous instruction is explained in Syllabus Point 5 of Yates v. Mancan, 153 W.Va. 350 , 168 S.E.2d 746 (1969): “ ‘An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.’ Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255 [ 151 S.E.2d 330 (1966)].” See also Rodgers v. Rodgers, 184 W.Va. 82 , 399 S.E.2d

1991Had the jury been properly instructed, it conceivably would have found no contributory negligence on the part of the infant plaintiff. 3 Our traditional rule regarding the impact of an erroneous instruction is explained in Syllabus Point 5 of Yates v. Mancan, 153 W.Va. 350 , 168 S.E.2d 746 (1969): “ ‘An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.’ Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255 [ 151 S.E.2d 330 (1966)].” See also Rodgers v. Rodgers, 184 W.Va. 82 , 399 S.E.2d

1991Had the jury been properly instructed, it conceivably would have found no contributory negligence on the part of the infant plaintiff. 3 Our traditional rule regarding the impact of an erroneous instruction is explained in Syllabus Point 5 of Yates v. Mancan, 153 W.Va. 350 , 168 S.E.2d 746 (1969): “ ‘An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.’ Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255 [ 151 S.E.2d 330 (1966)].” See also Rodgers v. Rodgers, 184 W.Va. 82 , 399 S.E.2d

1991Had the jury been properly instructed, it conceivably would have found no contributory negligence on the part of the infant plaintiff. 3 Our traditional rule regarding the impact of an erroneous instruction is explained in Syllabus Point 5 of Yates v. Mancan, 153 W.Va. 350 , 168 S.E.2d 746 (1969): “ ‘An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.’ Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255 [ 151 S.E.2d 330 (1966)].” See also Rodgers v. Rodgers, 184 W.Va. 82 , 399 S.E.2d