dissenting, said:
I do not concur in the opinion of the majority of the court in this case; and feel constrained to file a dissenting opinion.
After all the evidence in the case, both bytlie plaintiff and by the defendant, had been submitted to the jury, certain instructions were asked for by the plaintiff, and by the defendant, which the court refused to give to the jury, as prayed for; and, in lieu thereof, gave a detached fragment of plaintiff’s instruction Xo. 1, which, as a whole, had been refused; and then gave the two following instructions of its own, viz: “ The jury are instructed that the defendant is not responsible to the plaintiff for injuries resulting from the negligence of either Eobinson or Teller, unless they believe that he was not competent for or careful in the discharge of the duties assigned him, and that the defendant either knew, or hy the exercise of *178proper care, ought to have known that he was not competent or careful. 2. Rut if the jury shall believe that the defendant had failed to exercise all reasonable care and caution in its instructions to and control of Robinson and others, employees, in the yard, and in furnishing them with and requiring them to use all means and appliances reasonably necessary for the protection of its employees while engaged in such work as the plaintiff was engaged in when injured, they should find for the plaintiff, unless they further believe that the plaintiff contributed to the accident by his own failure to exercise such care and caution as an ordinarily prudent man with his knowledge or opportunities of knowledge of the danger, ought to have exercised for his own protection, in which event they should find for the defendant.”
To the action of the court in refusing to set aside the verdict and grant a new trial, upon the motion of the defendant; and in refusing to give the instructions asked for by the defendant; and in giving the instruction Ro. 2, asked for by the plaintiff, and the instructions aforesaid, given by the court of its own, the defendant excepted; and asked the court to certify all the evidence in the case; which was accordingly done.
It is not necessary to review the evidence in the case, nor to apply the rule which would restrict the consideration to the plaintiff’s evidence; because without reference to the merits of the case as presented by the record, the instructions which were given by the court are, in my opinion, erroneous; and the judgment of the-court should be reversed therefor.
The instruction Ro. 2 asked for by the plaintiff, and given by the court is as follows: “ The court instructs the jury that, if they should find for the plaintiff’ they may, in estimating his damages, take into consideration his physical and mental suffering arising from said injury, his medical expenses in getting his injuries healed, his loss of wages for the time that he was prevented by said injuries from working, and proper compensation for his being deprived by the said injuries from fol*179lowing such calling or business as he could have followed but for said injuries.” This instruction, while it states the law correctly, is but a detached fragment of the instruction ISTo. 1 of the plaintiff, which the court refused to give; and is without proper prelude or introduction, and makes no reference or relation to the evidence given in the case. '
The court’s instruction Rio. 1 is ambiguous and self-contradictory; and calculated to mislead the jury. It instructs the jury, in the same breath, “that the defendant is not responsible to the plaintiff for injuries resulting from the negligence of either Robinson or Teller, unless they believe that he was not competent for or careful in the discharge of the duties assigned him,” &c.
The words or proposition “not careful in discharge of the duties assigned him,” is negligence-, and therefore, the proposition to the jury is, “that the defendant (company) is not responsible to the plaintiff for injuries resulting from the negligence of either Robinson or Teller, unless they believe that he was (negligent) not careful.” Indeed, any instruction calculated to mislead the jury, whether it arises from ambiguity or any other cause, ought to be avoided; and, if given, it will oblige the appellate court to reverse the judgment.” 4 Minor’s Inst., part 1, (1878) p. 876.
But the instructions given by the court do not anywhere, from beginning to end, instruct the jury that they are to found their belief upon'the evidence. “To use only the words ‘if the jury believe,’ without conveying to their minds that they are to found their belief on the evidence, is an objectionable way of giving an instruction.” Thompson’s Charg. Jury, p. 88, § 62.
A jury must base their verdict upon the facts as shown by the evidence introduced before them; and it would be clearly erroneous for the court to instruct them in such a manner that they would be at liberty to believe certain facts, important to a proper decision of the issue, from any source other than the evidence'.” Railroad Co. v. Ingraham, 77 Ill., 470. And *180the opinion of this court in the case of Gordon v. City of Richmond, 83 Va., 436.
Bor the foregoing reasons and authorities, I am of opinion, that the judgment of the circuit court of the city of Bichmond complained of is erroneous and should be reversed and annulled.
Judgment affirmed.