dissenting:
Though I concur in the holding of the majority that under the evidence in this case bearing upon the question of contributory negligence upon the part of the plaintiff, that question was for the jury and that the trial court correctly applied the firmly established principle that 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, Graham v. Crist, 146 W. Va. 156, 118 S. E. 2d 640; Overton v. Fields, 145 W. Va. 797, 117 S. E. 2d 598; Lawrence v. Nelson, 145 W. Va. 134, 113 S. E. 2d 241; Clay v. Walkup, 144 W. Va. 249, 107 S. E. 2d 498; Lewis v. Mosorjak and McDonald, 143 W. Va. 648, 104 S. E. 2d 294; Workman v. Wynne, 142 W. Va. 135, 94 S. E. 2d 665; Prettyman v. Hopkins Motor Company, 139 W. Va. 711, 81 S. E. 2d 78; Davis v. Sargent, 138 W. Va.; 861, 78 S. E. 2d 217; I can not concur in the decision of the majority that the action of the trial court in giving the three instructions, designated as plaintiff’s Instructions A, B, and D, did not constitute reversible error. In my judgment each of these instructions is palpably erroneous and completely misstates the law with respect to negligence and contributory negligence, contrary to all prior decisions of this Court in which such questions were involved. The action of the trial court in giving each of these instructions constituted prejudicial error which calls for reversal of the judgment and I emphatically dissent from the surprising and to my mind entirely unwarranted holding of the majority that such instructions are not prejudicially erroneous.
*993Until the present decision this Conrt bas nniformly held without exception and in cases too numerous for complete and individual citation that in order to recover in an action based on the negligence of an individual defendant, as here, the plaintiff must prove that the defendant was guilty of negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains. A few of these many cases are Graham v. Wriston, 146 W. Va. 484, 120 S. E. 2d 713; Davis v. Fire Greek Fuel Company, 144. W. Va. 537, 109 S. E. 2d 144; Frye v. McCrory Stores Corporation, 144 W. Va. 123, 107 S. E. 2d 378; Miller v. Bolyard, 142 W. Va. 580, 97 S. E. 2d 58; Puffer v. The Hub Cigar Store, Inc., 140 W. Va. 327, 84 S. E. 2d 145; Hartley v. Crede, 140 W. Va. 133, 82 S. E. 2d 672; Matthews v. Cumberland and Allegheny Gas Company, 138 W. Va. 639, 77 S. E. 2d 180; McKinney v. Miller, 138 W. Va. 324, 75 S. E. 2d 854; Holiman v. The Baltimore and Ohio Railroad Company, 137 W. Va. 874, 74 S. E. 2d 767; Webb v. Sessler, 135 W. Va. 341, 63 S. E. 2d 65; Divita v. Atlantic Trucking Company, 129 W. Va. 267, 40 S. E. 2d 324; Fleming v. McMillan, 125 W. Va. 356, 26 S. E. 2d 8; Jones v. Smithson, 119 W. Va. 389, 193 S. E. 802; Jones v. Virginian Railway Company, 115 W. Va. 665, 177 S. E. 621; Fleming v. Hartrick, 100 W. Va. 714, 131 S. E. 558; Donald v. Long Branch Coal Company, 86 W. Va. 249, 103 S. E. 55; Massie v. Peel Splint Coal Company, 41 W. Va. 620, 24 S. E. 644. Yet nowhere in any of the three instructions is there mention of “proximate cause”, which is a vital and essential element of actionable negligence to justify a recovery. In lieu of these vital words are the words “contributed proximately”. That the words “proximate cause” and the words “contributed proximately”, which mean proximate contribution, are not legally of substantially the same is to me too obvious to be questioned or to justify debate. This Court has repeatedly held that the proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have resulted. Matthews v. Cumberland *994and Allegheny Gas Company, 138 W. Va. 639, 77 S. E. 2d 180; Well v. Sessler, 135 W. Va. 341, 63 S. E. 2d 65; Estep v. Price, 93 W. Va. 81, 115 S. E. 861; Schwartz v. Shull, 45 W. Va. 405, 31 S. E. 914. On the contrary “contributed proximately” necessarily implies that some additional “contribution” existed, that both together were necessary to cause the injury, and that proximate contribution of itself did not produce or constitute the efficient or proximate cause of the injury. Manifestly if a sole defendant merely “contributed proximately” to the injury his contribution is not the proximate cause of the injury and by every prior decision of this Court in which a recovery for actionable negligence was permitted or sustained, the negligence of the defendant was required to be the proximate cause of the injury. In short the expression “contributed proximately” does not mean, is not the equivalent of, and can not operate as a valid substitute for the express requirement of proximate cause of an injury in the law of negligence. The present decision, which departs from that basic and well established requirement, is to me cause for grave concern and must necessarily result in intolerable uncertainty and confusion with respect to what has been heretofore universally recognized as a fundamental requirement for a recovery based on negligence.
The holding of the majority as to instructions which incorporate a statement which in effect tells the jury that if the negligence of the single defendant merely “contributed proximately” to the injury, contrary to the true principle that such negligence must be the proximate cause of such injury, erroneously applies the doctrine of contributory negligence to the defendant and adopts it as a basis of recovery instead of restricting that doctrine to the plaintiff and applying it as a bar to any recovery by the plaintiff.
The action of the majority concerning the three clearly erroneous instructions is in direct conflict with the decision of this Court in Johnson v. Majestic Steam Laundry, 114 W. Va. 352, 171 S. E. 902, which cor*995rectly held in point 2 of tbe syllabns, as admitted in the majority opinion, that “An instruction which in effect tells the jury that if they believe from a preponderance of the evidence that the negligence of defendant contributed to the accident causing injury they may find for plaintiff is prejudicially erroneous.” (Emphasis supplied). The somewhat labored and completely unsuccessful effort of the majority to distinguish its holding in the case at bar from the decision of this Court in the Johnson case fails to point out any valid distinction between the two cases and in departing from the fundamental principle that the plaintiff, in order to recover in an action based on negligence, must establish by a preponderance of the evidence that the negligence of the defendant was the proximate cause of the injury, the majority opinion should have expressly overruled, instead of attempting to distinguish, the holding of this Court on that point of the syllabus in the Johnson case.
The majority opinion, in effect, admits that the statements contained in Instructions A, B, and D, “standing alone, probably were confusing”. It is clear to me that such statements were not only confusing and that such confusion was not eliminated by any consideration of the entire instructions or by any instructions given at the instance of the defendant, but instead the instructions in their entirety, being clearly erroneous in their misstatements of law, also tend to mislead the jury. For that reason, under many decisions of this Court, such instructions should have been refused and to give them constituted prejudicial error. An instruction which does not correctly state the law is erroneous. Preston County Coke Company v. Preston County Light and Power Company, 146 W. Va. 231, 119 S. E. 2d 420; Overton v. Fields, 145 W. Va. 797, 117 S. E. 2d 598; Hartley v. Crede, 140 W. Va. 133, 82 S. E. 2d 672; Matthews v. Cumberland and Allegheny Gas Company, 138 W. Va. 639, 77 S. E. 2d 180; Wilson, Administratrix v. Edwards, 138 W. Va. 613, 77 S. E. 2d 164; Thrasher v. Amere Gas Utilities *996Company, 138 W. Va. 166, 75 S. E. 2d 376; Moore v. Turner, 137 W. Va. 299, 71 S. E. 2d 342, 32 A.L.R. 2d 713; Thomason and Beggs v. Mosrie, 134 W. Va. 634, 60 S. E. 2d 699; Gilkerson, Administrator v. Baltimore and Ohio Railroad Company, 129 W. Va. 649, 41 S. E. 2d 188; Parrish v. City of Huntington, 57 W. Va. 286, 50 S. E. 416. It is reversible error to give an instruction which tends to mislead and confuse the jury. Preston County Coke Company v. Preston County Light and Power Company, 146 W. Va. 231, 119 S. E. 2d 420; Overton v. Fields, 145 W. Va. 797, 117 S. E. 2d 598; Mulroy v. Co-Operative Transit Company, 142 W. Va. 165, 95 S. E. 2d 63; Hartley v. Crede, 140 W. Va. 133, 82 S. E. 2d 672; Matthews v. Cumberland and Allegheny Gas Company, 138 W. Va. 639, 77 S. E. 2d 180; Chaney, Administrator v. Moore, 101 W. Va. 621, 134 S. E. 204, 47 A.L.R. 800; Frank v. Monongahela Valley Traction Company, 75 W. Va. 364, 83 S. E. 1009. An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not injured by the giving of such instruction. Preston County Coke Company v. Preston County Light and Power Company, 146 W. Va. 231, 119 S. E. 2d 420; Overton v. Fields, 145 W. Va. 797, 117 S. E. 2d 598; Cato v. Silling, 137 W. Va. 694, 73 S. E. 2d 731, cer-tiorari denied, 348 U. S. 981, 75 S. Ct. 572, 99 L. Ed. 764, rehearing denied, 349 U. S. 924, 75 S. Ct. 659, 99 L. Ed. 1256; Buffington v. Lyons, 71 W. Va. 114, 76 S. E. 129; Ward v. Brown, 53 W. Va. 227, 44 S. E. 488.
The erroneous and disturbing conclusion of the majority concerning the three instructions has resulted from its mistaken application of the doctrine of concurrent negligence to the single or individual defendant in this case. This is evident from the cases cited in the majority opinion in connection with the consideration of that doctrine by the majority. In all of the cases cited in the majority opinion, however, in which this Court recognized or applied the doctrine *997of concurrent negligence, two or more persons charged with negligence were impleaded and proceeded against as defendants in the proceeding. In each of the cited cases of Hartley v. Grede, 140 W. Va. 133, 82 S. E. 2d 672; Roush v. Johnson, 139 W. Va. 607, 80 S. E. 2d 857; Wilson, Administratrix 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; Sigmon, Admx. v. Mundy, 125 W. Va. 591, 25 S. E. 2d 636; Baker v. City of Wheeling, 117 W. Va. 362, 185 S. E. 842; Starcher, Admr., etc. v. South Penn Oil Company, 81 W. Va. 587, 95 S. E. 28; Johnson v. Chapman, 43 W. Va. 639, 28 S. E. 744, in which concurrent negligence was dealt with or considered, there were at least two or more defendants. In none of those cases, or in any other case involving concurrent negligence, was the action, as here, against a sole defendant. It is clear from the above cited cases, and the many other cases in which concurrent negligence was involved, that the doctrine of concurrent negligence is applicable only when two or more person charged with negligence are proceeded against as defendants to the proceeding. It clearly does not apply in a proceeding, as here, in which only one person is the defendant. Walker v. Robertson, 141 W. Va. 563, 91 S. E. 2d 468. Any correct statement of the doctrine expressly refers to or deals with the concurrent wrongful acts or omissions of two or more persons. This Court has said in several cases that “Concurrent negligence occurs when two or more persons are guilty of negligence and the negligence of each in point of time and place concurs and proximately causes or contributes to the injury of another person.” (Emphasis supplied). Point 4, syllabus, Hartley v. Crede, 140 W. Va. 133, 82 S. E. 2d 672; Ransom v. Otey, 144 W. Va. 810, 111 S. E. 2d 21; Frye v. McCrory Stores Corporation, 144 W. Va. 123, 107 S. E. 2d 378; Adkins v. Smith, 142 W. Va. 772, 98 S. E. 2d 712; Wilson, Administratrix v. Edwards, 138 W. Va. 613, 77 S. E. 2d 164; Brewer v. Appalachian Constructors, Inc., 135 W. Va. 739, 65 5. E. 2d 87; Sigmon, Admx. v. Mundy, 125 W. Va. *998591, 25 S. E. 2d 686; Miller v. Douglas, 121 W. Va. 638, 5 S. E. 2d 799; Starcher, Adm. v. South Penn Oil Company, 81 W. Va. 587, 95 S. E. 28. In Walker v. Robertson, 141 W. Va. 563, 91 S. E. 2d 468, this Court correctly held in point 5 of the syllabus that “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.” From the foregoing it is clear that the doctrine does not apply in an action based on negligence in which there is only one defendant, as here, or sustain or justify the action of the majority concerning the instructions which disregard the basic requirement that the negligence of an individual defendant must be the proximate cause of, not a proximate contribution to, the injury to permit a recovery by the plaintiff.
The three instructions are also prejudicially erroneous in that each of them, in telling the jury that it may find in favor of the plaintiff if the jury believe from a preponderance of the evidence that the negligence of the defendant contributed proximately to the injury, fails to negative contributory negligence upon the part of the plaintiff. The language of the instructions on that point is that the jury may find for the plaintiff unless it further believes that the plaintiff, “at the time of the accident, was not using” due care, or ordinary and reasonable care, “in his own behalf.” That language does not satisfy the requirement that the jury must believe that the plaintiff was not guilty of contributory negligence before it is authorized by a binding or permissive instruction to return a verdict in favor of the plaintiff. Such an instruction is incomplete and erroneous if it does not specifically negative contributory negligence. Graham v. Wriston, 146 W. Va. 484, 120 S. E. 2d 713; McMicken v. Province, 141 W. Va. 273, 90 S. E. 2d 348, 59 A.L.R. 2d 470; Payne, Admr. v. The Virginian Railway Company, 131 W. Va. 767, 51 S. E. 2d 514; Underwood v. Goff, 131 W. Va. *999662, 49 S. E. 2d 860; Skaff v. Dodd, 130 W. Va. 540, 44 S. E. 2d 621; Vaughan v. Oates, 128 W. Va. 554, 37 S. E. 2d 479; Bragg v. C. I. Whitten Transfer Company, 125 W. Va. 722, 26 S. E. 2d 217; Nichols, Adm’r. v. Raleigh Wyoming Mining Company, 113 W. Va. 631,169 S. E. 451. In Graham v. Wriston, 146 W. Va. 484, 120 S. E. 2d 713, tbis Court, quoting the syllabus in Nichols, Adm’r. v. Raleigh Wyoming Mining Company, 113 W. Va. 631, 169 S. E. 451, held in point 7 of the syllabus that: “Ordinarily, where contributory negligence of the plaintiff is relied on as a defense, it is prejudicial error to give for the plaintiff an instruction which directs the jury to find for the plaintiff if certain recited facts are believed by the jury from the evidence, but which instruction does not specifically negative contributory negligence on the part of the plaintiff. The error involved in the giving of such erroneous instruction is not corrected by the giving to the jury of other instructions covering contributory negligence.”
In Payne, Admr. v. The Virginian Railway Company, 131 W. Va. 767, 51 S. E. 2d 514, the language “without fault on his part” was held to be insufficient to negative contributory negligence. In Skaff v. Dodd, 130 W. Va. 540, 44 S. E. 2d 621, the language in various instructions that if the jury believes that the plaintiff, “while exercising ordinary care as aforesaid”, “in attempting to cross Virginia Street was exercising ordinary care for his own safety”, “was'exercising ordinary care in attempting to cross Virginia Street at the point of injury immediately after leaving said bus”, and “was exercising ordinary care for his own safety at the time of injury” was held to be insufficient to negative contributory negligence. In Bragg v. C. I. Whitten Transfer Company, 125 W. Va. 722, 26 S. E. 2d 217, the expression in an instruction that if the jury “believe the plaintiff himself without negligence” was held to be insufficient to negative contributory negligence. It is clear to me that if the expression in the instruction in the STcaff case to the *1000effect tbat tbe plaintiff “was exercising ordinary care for bis own safety at tbe time of injury”, tbe expression in tbe instruction in tbe Bragg case tbat if tbe jury believe ‘ ‘ tbe plaintiff bimself without negligence ’ ’, and tbe expression in tbe instruction in tbe Payne case tbat tbe plaintiff was “without fault on bis part”, did not specifically negative contributory negligence upon tbe part of the plaintiff, tbe expression in tbe instructions in this case tbat unless the jury believed tbat tbe plaintiff, “at tbe time of tbe accident, was not using” due care, or reasonable and ordinary care, “in bis own behalf”, likewise fails to negative contributory negligence upon tbe part of tbe plaintiff. Tbat tbe instructions were permissive, rather than binding, is of no consequence or importance with respect to tbe sufficiency of tbe language used to negative contributory negligence upon tbe part of tbe plaintiff. Language which is insufficient to negative contributory neligence in a binding instruction is equally insufficient for tbat purpose in a permissive instruction. Tbe principle tbat an instruction which incorrectly states tbe law is an erroneous instruction and should be refused applies to any instruction without regard to its character as a binding or a permissive instruction. Tbe failure of tbe defendant in this case to assign as error tbe omission from tbe challenged instructions of language which specifically negatives contributory negligence upon tbe part of the plaintiff, though amounting to a waiver of such error as a ground of reversal, does not prevent comment concerning tbe character of such instructions as correct or erroneous.
Prejudicial error resulted from the action of tbe trial court in giving tbe three instructions for tbe additional reason tbat those instructions are inconsistent with other instructions dealing with contributory negligence given by tbe court at tbe instance of tbe defendant. Notwithstanding tbe conflict arising from tbe instructions given by tbe trial court, tbe' majority ignores such conflict and, instead of recognizing and giving *1001effect to the error caused by the conflicting instructions and reversing the judgment on that ground, considers the conflict in the instructions as explanatory and corrective of the three erroneous instructions given at the instance of the plaintiff. With that conclusion I do not agree. Point 7, syllabus, Graham v. Wriston, 146 W. Va. 484, 120 S. E. 2d 713; syllabus, Nichols, Adm’r. v. Raleigh Wyoming Mining Company, 113 W. Va. 631, 169 S. E. 451. This Court has repeatedly held that it is prejudicial error to give inconsistent instructions inasmuch as the jury is left to decide as to which theory of the law, as thus presented, is correct, and it is impossible for the court to determine upon what legal principle the verdict is founded. Zinn v. Cabot, 88 W. Va. 118, 106 S. E. 427; Penix v. Grafton, 86 W. Va. 278, 103 S. E. 106; Parkersburg Industrial Company v. Schultz, 43 W. Va. 470, 27 S. E. 255; McKelvey, Adm’x v. The Chesapeake and Ohio Railway Company, 35 W. Va. 500, 14 S. E. 261; McMechen v. McMechen, 17 W. Va. 683, 41 Am. Rep. 682.
Though the three challenged instructions were permissive instead of binding in character because each of them uses may instead of must in informing the jury as to its verdict, the effect of each instruction was to tell the jury erroneously that it could return a verdict in favor of the plaintiff if it believed that the negligence of the defendant, instead of being the proximate cause of, contributed proximately to, the injury, and, also erroneously, that it could return such verdict even though it may not have believed that the plaintiff was not guilty of contributory negligence. As to the effect of contributory negligence this Court, in its opinion in Graham v. Wriston, 146 W. Va. 484, 120 S. E. 2d 713, used this language: “* * * if the plaintiff was guilty of negligence which proximately contributed to cause his injuries, it was the imperative, unqualified duty of the jury to return a verdict for the defendant.” Manifestly any verdict authorized' or induced by such flagrantly erroneous instructions as the challenged instructions given at the instance of the *1002plaintiff is so utterly contrary to all applicable legal principles as to render it mandatory for any conrt to set aside sncb verdict.
For tbe reasons indicated, I dissent; and, because tbe three challenged instructions were prejudicially erroneous, I would reverse tbe judgment, set aside tbe verdict, and remand tbe case for a new trial.