Berry, Judge:
Icy Smith., as committee for Flora Robinson, hereinafter referred to as the plaintiff, instituted this action of trespass on the case in the Circuit Court of Raleigh County to recover for injuries sustained by plaintiff when the automobile, owned by defendant, Clarence Canterbury, and being driven by defendant, Dayton Canterbury, in which plaintiff was a guest passenger, collided with the parked truck owned by the defendant, Penn Line Service, Inc., and assigned to the custody of the defendant, J. W. Hosey, its agent and employee.
The truck belonging to the defendant, Penn Line Service, Inc., was used in its business of pruning trees along power line rights of way and is described as weighing about 6500 pounds and as having an overall length of twenty-one feet two inches, the bed thereof being twelve feet two inches in length and seven feet eleven inches overall in width, including a tool box 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. The truck was equipped with dual wheels on the rear which the bed overlapped a distance of four and one-half inches on each side. The tool box on the left side was set on a ledge at the bottom of the bed in such a fashion that it was practically all within the slight overlap at the left side of the rear wheels, as indicated by a photograph of said truck which was introduced in evidence during the trial by Penn Line Service, Inc. and Hosey and marked Defendants’ Exhibit No. 7. The tool box was closed at both ends, open on one side and pruning poles placed therein were prevented from coming out by a heavy strap one foot from the rear of said box.
On the morning of February 28,1957, the defendant, Hosey, being unable to work because of rain, parked [4]*4the truck in a slight curve on Yalley Drive, a public street in the City of Beckley and also a portion of West Virginia State Route No. 16. Yalley Drive is described as being forty feet in width and having four lanes, the two inside lanes being twelve feet in width and the two outside lanes being eight feet in width at the outer edge of which on each side there' is a curb next to a sidewalk. There was no city ordinance prohibiting parking on the street in' question, and the evidence shows that the outside lanes were customarily used for that purpose and the inside lanes used for vehicular traffic. No physical obstruction to the vision of the truck existed 256 feet back of the lane in which it was parked and for 318 feet back of the right hand vehicular lane' adjacent to which it was parked. In the position in which the truck was parked, the only witness, including all the witnessses who testified in the trial of the case, who said the wheels or tires on the right hand side of the truck were not against the curb, was Hughy Canterbury, a brother of the defendants, Dayton Canterbury and Clarence Canterbury, who testified on behalf of the plaintiff that it was a foot out from the curb, so under any view it was n<?t parked in violation of the state statute requiring vehicles to be parked within eighteen inches of the existing curb in a parallel manner. If the figures of the witness, Jess Williams, who testified for the plaintiff as to an overall width of the truck being seven feet eleven inches, are correct, and the tire or wheel extended a foot from the curb, the other tire was two inches in the traveled lane, with the body of the truck six and one-half inches in the traveled lane. However, defendants’ Exhibit No. 7, referred to above, properly introduced into evidence and made a part of the record in this case, indicates that the truck is not as wide as, the witness stated, because the Exhibit, with the truck wheels portrayed against the curb, shows that at least eight inches existed between the left side of the truck and the twelve foot lane ordinarily used for vehicular traffic. Notwithstanding these measurements, Exhibit No. 7 indicates that the Canterbury car struck the truck owned [5]*5by Penn Line Service, Inc. at least 6% inches to the right of the left edge thereof, clearly indicating, that the accident occurred within the eight foot lane customarily used for parking. This fact is admitted in the final argument by an attorney for the plaintiff wherein he stated that the automobile in which the plaintiff was riding “pushed against the mud flaps covering the left dual wheels”, which is clearly shown in defendants’ Exhibit No. 7.
Plaintiff, an employee of the Raleigh Steam Laundry in the City of Beckley, completed a nine-hour shift at seven o’clock in the evening on February 28, 1957. Shortly thereafter, she entered the 1949 Pontiac automobile owned by the defendant, Clarence Canterbury, but driven by defendant, Dayton Canterbury, along with three other employees of the Raleigh Steam Laundry, the plaintiff sitting on the front seat of the automobile next to the door on the right side. All of the witnesses in the Canterbury car who testified on behalf of the plaintiff stated that at the time of the accident it was raining and foggy; that visibility was poor and that they could see for only twenty-five or thirty feet in front of the car. Other witnesses, including the police officer who investigated the accident, who testified for the plaintiff, said that it was raining but that objects could be seen by them for a distance of about two hundred feet. The evidence of the defendant, Penn Line Service, Inc., shows that it was raining, but denies that there was any fog or that visibility was abnormally impaired.
It is admitted that the windshield wiper on the right side of the automobile in which the plaintiff was a passenger was not operating, and two witnesses who arrived shortly after the accident testified that the driver of the Canterbury car admitted that the left hand windshield wiper and defroster on the car he was driving were not functioning, that the windshield was covered with fog and that he could not see the truck. However, the driver, Dayton Canterbury, denies mak[6]*6ing such statements and says he does not remembe ■ stating that the windshield was covered with fog.
After the plaintiff entered the automobile driven b, the defendant, Dayton Canterbury, they proceeded to Valley Drive, turned thereon, and within a few blocks the collision occurred, which, it was stipulated, was more than one-half hour after sunset on that day. The defendant, Dayton Canterbury, stated that the automobile he was operating was being driven at a speed of from fifteen to twenty miles an hour and that he did not see the parked truck of Penn Line Service, Inc. until after the collision. One of the witnesses, a passenger riding on the rear seat of the Canterbury car, stated that they were not driving over thirty miles an hour. After the automobile struck the rear end of the Penn Line Service, Inc. truck, it ran for a distance of about 150 feet past the truck before it was stopped. The damage to the automobile started at the right front headlight and continued along the right fender, windshield, door post and door which were indented and badly bent but still attached to the body of the car. The plaintiff was seriously injured, losing the sight of her left eye and suffering brain damage affecting “her ability to be emotionally stable and ability to concentrate, ability to remember, ability to maintain her balance, and ability to stick to any job and complete any simple task.” A piece of wood was removed from the plaintiff’s left eye which apparently was a part of a shattered pruning pole found in the street. The poles were carried in the tool carrier with the strap padlocked and it was impossible to get them out without breaking them, because of a flange on the front end and a strap on the rear. The impact caused by the collision broke the strap and several poles. By testimony of witness and by photographs it was shown that after the crash the car had on its side a series of tire marks corresponding to the snow grip tread of tires on the truck. These marks came up to the car windows. Defendants’ Exhibit No. 8, introduced as evidence in this case, shows deep indentations made by [7]*7tlie truck tires beginning about six inches from the edge of the right fender or on the interior thereof. In any event, it is clearly shown that it was more than two inches from the right side of the car, and under no version of testimony were the tires of the truck over two inches into the portion of the highway customarily used for vehicular traffic, so that the first point of impact is disclosed by the physical facts to have been within the eight foot parking lane.
The defendant, Penn Line Service, Inc., introduced evidence, as heretofore mentioned, denying that there was any fog present or that visibility was abnormally impaired. It also introduced evidence to show that the truck was parked directly beneath a street light which contained a 189 watt bulb, equipped with a reflector which caused the light therefrom to be cast in the shape of the figure “8”, so that it would overlap the pattern cast by other identical lights. Back from this street light, in the direction from which the Canterbury car was proceeding and on the opposite side of the street, a distance of 159.3 feet, is another street light. Farther down the street from the street light by which the truck was parked, on the same side of the street, a distance of 170.3 feet, was another street light. All were equipped with 189 watt bulbs and reflectors. A witness for Penn Line Service, Inc., who lived near the scene of the accident, was not allowed to testify before the jury that he could see an object from 500 feet away on that street at the time of the wreck. This answer was vouched for the record but he was allowed to testify before the jury that he saw the truck 150 to 200 feet away from where he was at the time he heard the crash. Dayton Canterbury said that after the accident he could see the truck over 150 feet away, although he stated that before the accident he could see for only 25 or 30 feet in front of the car he was driving and did not see the truck at any time until after the accident. Other disinterested witnesses, attracted by the commotion, said they could see the wrecked vehicle for approximately 400 feet. A lighting [8]*8expert testified that an object could be seen for 500 feet, even in a drizzling rain.
At the conclusion of the plaintiff’s evidence, the trial court sustained motions with regard to the violation of certain statutes dealing with the placing of flares, flags, parking within 18 inches of a curb and violation of a parking ordinance of the City of Beckley wherein parking was prohibited for more than twenty-four hours, holding that a violation thereof had not been proved by the evidence introduced in the ease, and we think rightly so. The only motion of the defendants, Penn Line Service, Inc. and Hosey, for a directed verdict, which was overruled, relative to the violation of certain statutes, was one pertaining to Code, 17C-15-15 (b), as amended.
At the conclusion of all the evidence, a motion for a directed verdict on behalf of Clarence Canterbury was sustained on the ground that he did not authorize Dayton Canterbury to transport passengers other than his family. A like motion as to the defendants, Penn Line Service, Inc. and Hosey, was overruled on the ground that their negligence was a jury question. A motion to declare a mistrial on behalf of Penn Line Service, Inc. and J. W. Hosey, because the plaintiff was allowed to be present in the courtroom during the trial was also overruled. '
The jury first returned a verdict in favor of the defendant, Dayton Canterbury, saying he was not negligent, and only against the defendant, Penn Line Service, Inc., in the amount of $85,000.00, but the court, after conference with counsel, sent the jury back to dispose of the case of the defendant, Hosey, and it then included him in the verdict finding against both Penn Line Service, Inc. and Hosey. A motion to set aside the verdict was overruled and judgment,entered thereon, to which this Court granted a writ of error and super-sedeas on March 9,1959.
The trial of this case consumed several days and the errors complained of by counsel for the defendant, [9]*9Penn Line Service, Inc., are numerous. However, most of the errors assigned are without merit or proper objections, and motions were not made in order to save them and thus have same considered by this Court.
The declaration in this case is rather lengthy and consists of three counts. The first count alleges both common law and statutory duties of the defendants, Penn Line Service, Inc. and J. W. Hosey, and the violation thereof; the second count alleges the common law duties of the defendants, Dayton Canterbury and Clarence Canterbury, and the violation thereof, and the third count combines all of these alleged violations against all four defendants.
Unless the five hundred foot statute, Code, 17C-15-15-(b), as amended, as covered by Instruction No. 9, offered by the plaintiff and given by the Court, is applicable, and the defendants, Penn Line Service, Inc. and Hosey, are subject to its proyision, it .was, of course, reversible error to give this instruction. The only ordinance of the City of Beckley to which reference is made in this record is one prohibiting parking of vehicles within the city limits for a period of twenty-four hours. The uncontradicted evidence shows that the truck in question had been parked for only approximately nine hours and therefore this ordinance was not applicable to this case.
The first question to be considered in the disposition of this- case is whether plaintiff’s Instruction No. 9 and the statute upon which it was based are applicable to this case. By Chapter 129, Acts of the Legislature, Regular Session, 1951, Chapter 17 of the West Virginia Code, as theretofore amended, and titled “Roads and Highways ’ ’ was amended and four new Chapters, 17A, 17B, 17C and 17D were added. Since the reenactment of 1951, this Court has not had occasion to construe many of the provisions of the Code relative to these matters. The consideration of the threshold question calls for a construction of certain sections of Chapter 17C, titled “Traffic Regulations and Laws [10]*10of the Road”, which are hereinafter quoted. Plaintiff’s Instruction No. 9 and the applicable statute upon which the Instruction is based will be quoted in full, in order that a clear understanding may be had of the question involved. Plaintiff’s Instruction No. 9 reads as follows:
“The court instructs the jury that the statutory law of this state provides that, ‘Whenever a vehicle is parked or stopped upon a roadway or shoulder adjacent thereto, whether attended or unattended, during the hours between a half hour after sunset and a half hour before sunrise and there is not sufficient light to reveal any person or object within a distance of five hundred feet upon such highway, such vehicle so parked or stopped shall be equipped with one or more lamps which shall exhibit a white light on the roadway side visible from a distance of five hundred feet to the front of such vehicle and a red light visible from a distance of five hundred feet to the rear.’
"Therefore, if you believe from the evidence that the truck of Penn Line Service, Inc., was parked upon the roadway between the hours cited in the statute, and that there was not sufficient light to reveal a person or object within a distance of 500 feet on that highway, and if you believe that the truck was not then equipped with the lights or lamps required by the statute, then the defendants, Penn Line Service, Inc., and J. W. Hosey were guilty of prima facie negligence, and if you further believe from the evidence that such negligence was a proximate cause of the accident, your verdict should be in favor of the plaintiff and against defendants, Penn Line Service, Inc., and J. W. Hosey unless Flora Robinson was guilty of negligence.”
The pertinent part of the statute upon which this Instruction is based, Code, 17C-15-15, reads as follows :
“Lamps on Parked Vehicles.
“(a) Whenever a vehicle is lawfully parked upon a street or highway during the hours between a half hour after sunset and a half hour before sunrise and in the event there is sufficient light to reveal any person or object within a distance of five hundred [11]*11feet upon such street or highway no lights need be displayed upon such parked vehicle.
“(b) Whenever a vehicle is parked or stopped upon a roadway or shoulder adjacent thereto, whether attended or unattended, during the hours between a half hour after sunset and a half hour before sunrise and there is not sufficient light to reveal any person or object within a distance of five hundred feet upon such highway, such vehicle so parked or stopped shall be equipped with one or more lamps which shall exhibit a white light on the roadway side visible from a distance of five hundred feet to the front of such vehicle and a red light visible from a distance of five hundred feet to the rear.
# # # #
“(c) Any lighted head lamps upon a parked vehicle shall be depressed or dimmed.”
It will be noted that the first paragraph of Instruction No. 9 refers to paragraph (b) of this statute. It will also be noted that the second paragraph of Instruction No. 9 does not follow the language of the statute. It merely states that if the jury finds that the defendant’s truck was parked and not equipped with lights or lamps required by the statute, then the defendants, Penn Line Service, Inc. and J. W. Hosey are guilty of prima facie negligence and they could find against the defendants unless they found Flora Robinson guilty of negligence. The statute requires that such lights or lamps be exhibited or displayed. There is no evidence in this case that the truck in question was not equipped with such lights, but it is admitted or agreed that same were not displayed at the time of the accident. In a statute such as this, there must be some standard to be used in determining the distance stated therein because it would be impossible to see 500 feet away in every given instance. This would be true where a curve was in the road, thus making it impossible to see 500 feet straight ahead, or where the weather conditions were such that it would be impossible to see 500 feet either to the front or to the rear. This standard was set up and fixed in a prior statute in the same section, Code, [12]*1217C-15-3, titled, “Visibility Distance and Mounted Height of Lamps ’ and reads as follows:
“(a)' Whenever requirement is hereinafter declared as to the distance from which certain lamps and devices shall render objects visible or within which such lamps or devices shall be visible said provisions shall apply during the times stated in section two [§1721 (406)] of this article in respect to a vehicle without load when upon a straight, level, unhghted highway under normal atmospheric conditions unless a different time or condition is expressly stated.
“(b) Whenever requirement is hereinafter declared as to the mounted height of lamps or devices it shall mean from the center of such lamp or device to the level ground upon which the vehicle stands when such vehicle is without a load.”
Section. 2, Code, 17C-15-2, referred to in the statute which is quoted, reads as follows:
“Every vehicle upon a highway within this state at any time from a half hour after sunset to a half hour before sunrise and at any other time when there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of five hundred feet ahead shall display lighted lamps and illuminating devices as hereinafter respectively required for different classes of vehicles, subject to exceptions with respect to parked vehicles as hereinafter stated.”
The exceptions referred to in this section are indicated in paragraph (a) of Code, 17C-15-15, which is applicable to this case, wherein it is stated that when a vehicle is lawfully parked on a street or highway between a half hour after sunset and a half hour before sunrise, and there is sufficient light to reveal any person or object within a distance of five hundred feet, no lights need be displayed upon such vehicle. The five hundred feet must be read in connection with the standard set out in Code, 17C-15-3, “under normal atmospheric conditions”. This logical construction is borne out by decisions in similar. or related cases. See 21 A.L.R. 2d §7, page 111 and Rowe v. Safeway [13]*13Stores, (Wash.) 128 P. 2d 293. In the Rowe case both the majority and dissenting opinions construe the statute to mean a light visible for five hundred feet under normal weather conditions. It is true that the Rowe case refers tc a light on a vehicle being seen, but the same rule would apply to a street light sufficient to reveal an object for five hundred feet under normal atmospheric conditions. This is exactly what paragraph (a) of Code, 17C-15-15 states when it says that it is not necessary to display lights on any parked vehicle where there is sufficient light to reveal said object within a distance of five hundred feet.
There is no conflict in the evidence or any controversy in this case with regard to the fact that the street lights in and about the scene of the accident produced sufficient light to reveal the truck at the time of the accident for a distance of five hundred feet under normal weather conditions.
We now come to the question of whether the truck of the defendant, Penn Line Service, Inc., was lawfully parked on Valley Drive in the City of Beckley at the time of the accident. There is no question from the evidence but that the eight foot strips or lanes on each side of Valley Drive were customarily used for the parking of vehicles. The state statute dealing with parking of vehicles, Code, 17C-13-4, provides that every vehicle stopped or parked upon a roadway where there are adjacent curbs shall be parked with the right hand wheels of such vehicle parallel to and within eighteen inches of the right hand curb. The word parallel distinguishes such parking from angle parking. There is no question in this case that the Penn Line Service, Inc. truck was parked substantially parallel to and within eighteen inches of the curb and did not violate this statute. There was no violation of any parking ordinance of the City of Beckley with regard to the parking of the truck of Penn Line Service, Inc. at the place in question. The only prohibition was that it could not be parked for a period of more than twenty-four hours and the evidence in this case [14]*14shows that the truck had been parked for a period of only nine hours at the time of the accident. It will be seen that all statutes and ordinances applicable to the parking of this truck were complied with and the truck was lawfully parked. It would therefore clearly appear that the giving of plaintiff’s Instruction No. 9 in this case was reversible error. The Instruction is not applicable as indicated in paragraph (a) of Code, 17C-15-15, which is the pertinent part of the statute applicable to this case, but even the provisions of paragraph (b) of said section, upon which the Instruction is based, also show that it is not applicable to this case, because it likewise states that where a vehicle is parked or stopped during said hours and there is insufficient light to reveal an object for five hundred feet, the light shall be exhibited, regardless of whether it is lawfully parked at the time. This statute likewise must be construed in connection with the standard applicable to the five hundred feet, which is, under normal atmospheric conditions, and as heretofore stated, the street lights where the truck was parked made it clearly visible for at least five hundred feet under normal atmospheric conditions.
The logical construction of the statute in question, Code, 17C-15-15, is that if there was sufficient light to see the truck for five hundred feet under normal atmospheric conditions, it was not necessary for lights to be displayed on the truck, and in case of poor visibility by virtue of which the lights that could be seen under normal weather conditions could not then be seen, Code, 17C-6-1 places the burden upon the approaching driver of an automobile to use due care so as to avoid colliding with another vehicle lawfully parked.
We now come to the next and most important question involved in this case, and that is, the question of proximate cause. Even if the defendant, Penn Line Service, Inc. had violated the statute with regard to displaying lights, which, under the law of this state, would constitute prima facie negligence, the plaintiff could not recover unless the violation of the statute [15]*15was the proximate cause of the accident. 4 Blashfield, Part 2, § § 2632, 2643; 5 Am. Jur., Automobiles, §164; Ambrose v. Young, 100 W. Va. 452, 130 S.E. 810.
The principle involved here is discussed in 5A Am. Jur., Automobiles and Highway Traffic, §410, wherein it is stated:
“Negligence in leaving an automobile parked on or along the street or highway without lights or insufficiently lighted does not, however, charge the owner or operator with responsibility for an accident involving such automobile unless the negligence in this respect can be said to be a proximate cause of the accident or injury; and in many of the cases involving the negligence of one who leaves an automobile unlighted or insufficiently lighted, the ultimate issue was whether the proximate cause of the accident was the intervening negligence of a third person. Such negligence may be regarded as the proximate cause, or a proximate cause, of injury to an occupant of another car where it is immediately occasioned by the act of the driver of the latter car in colliding with the parked automobile.”
It was held in the case of Duff v. Lykins, (Ky.) 306 S.W.2d 252, with a factual situation comparable to the case at bar, that the owner of a truck parked on a state highway within the city limits was not liable for injuries sustained by an occupant of an automobile which collided with an unlighted truck at night where such parking was not prohibited by city ordinance.
It was also held in the case of Powell v. General Accident, Fire & Life Assur. Corp., (La.) 18 So. 2d 921, that where a motorist ran into the rear end of a truck which was parked next to the curb at night, within the city limits, although the truck had no lights burning it was illuminated by lights from a nearby fruit stand, the accident was caused solely by the driver’s negligence and recovery was barred. The similarity of the Powell case to the case at bar is clearly shown in the last paragraph of the opinion which reads as follows:
“The preponderance of the evidence is to the effect that vehicles were customarily parked at the [16]*16place where the accident occurred and without lights. The accident having occurred within the City of Baton Rouge, and there being no statute or ordinance of the said city prohibiting the parking of motor vehicles without lights in that neighborhood, it is our opinion the defendant was not guilty of any negligence in parking the Chevrolet truck and that the accident was caused solely by the negligence and inattention of Mr. Powell,, and that consequently the judgment below is correct and it is affirmed.”
In the case of Scott v. Engineering Co., 117 W.Va. 395, 397, 185 S.E. 553, it was held, with facts somewhat similar to those in the case at bar, that the manner in which a track was parked, even though it violated the statute with regard to parking, did not proximately cause the accident and the plaintiff could not recover when he ran into said truck. In disposing of this question in the Scott case, the Court said:
“The view was unobstructed from the top of the hill to the point where the defendant’s truck was parked, according to the plaintiff, a distance of one hundred fifty feet. Under these circumstances, it was plainly the duty of the plaintiff to have paid some attention to his view of the road after he passed over the hill, and, certainly, at some time before he was within thirty feet of the defendant’s truck. Apparently, he was paying little or no heed to what was before him. There was no other traffic on the road and nothing to prevent plaintiff from passing around defendant’s truck without difficulty. It is true, that the road was slippery, but the plaintiff was fully aware of that fact and had taken precautions against it, both in the matter of having chains upon his car and in the speed at which he was driving. To drive within thirty feet of a parked truck, under the circumstances of this case, without looking at the road in front, we think, without doubt, convicts the plaintiff or being guilty of negligence as a matter of law. That negligence, having appreciably followed that of the defendant in point of time, was the independent efficient, or proximate, cause of the damage to plaintiff’s car. It was a happening distinctly intervening between the negligence of the defendant and the accident, without which the accident would not have happened. This fact prevents [17]*17the act of the defendant from being the proximate cause of the damage to the plaintiff.”
In the case of Divita v. Trucking Co., 129 W.Va. 267, 276, 277, 40 S.E.2d 324, cited in the plaintiff’s brief as authority to support her position, it might be well to point out that although the Court said the plaintiff was barred from recovery because of contributory negligence as a matter of law on the part of the driver running into the rear of a parked truck projecting into the highway being imputed to him, since he was the owner of the car or taxi involved and in which he was a passenger at the time of the collision, the reason the truck driver was held to be guilty of common law negligence was because he parked his truck in the traveled portion of the highway when he should have stopped same so as to be clear of the traveled portion of the highway, a reason which does not exist in the case presented here. The Court further stated, however, in the Divita case that:
“It is elementary that notwithstanding a finding of primary negligence on the part of defendant, to sustain a recovery thereon, it must also be shown that such negligence was the sole proximate cause of the damage complained of. If it appears that plaintiff was guilty of acts of negligence which proximately contributed’ to the damage complained of, plaintiff is barred of recovery. The term proximate cause has been defined as that cause' * * without which the accident would not have occurred * * * ’. Anderson v. Railroad Co., 74 W.Va. 17, 19, 81 S.E. 579; Scott v. Engineering Co., 117 W.Va. 395, 398, 185 S.E. 553; Miller v. Douglas, 121 W.Va. 638, 5 S.E.2d 799. It necessarily follows that the term proximately contributed is of similar import. Therefore, we are called upon to ascertain if plaintiff and his driver were guilty of negligent acts without which the accident would not have occurred.’ We think that under the circumstances stated above, they were guilty of such acts.”
The principle is stated in 4 Blashfield, Automobile Law and Practice, §2641, in the following language:
“A motorist colliding with an automobile parked on the highway is guilty of negligence proximately [18]*18causing the collision if he could have seen the parked automobile in time to avoid the collision, but the contraiy is true if the accident would have occurred even if he had seen the parked vehicle within a reasonable time before the accident.”
In the ease of Hubbard v. Murray, (Va.) 3 S.E.2d 397, 401, it is held that where the defendant’s bns violated a statute by stopping partially in the highway and was “sideswiped” by the plaintiff’s truck, the proximate cause was the collision of the truck of the plaintiff with the bus and that there could be no recovery as a matter of law. The court, in that case, held:
“From what was said in these cases we deduce the following general rule: Where a second tort-feasor becomes aware, or by the exercise of ordinary care should be aware, of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter by an independent act of negligence brings about an accident, the condition created by the first tort-feasor becomes merely a circumstance of the accident, but is not a proximate cause thereof. The original negligence of the first tort-feasor is legally insulated by the intervening independent negligence of the second tort-feasor, and the latter becomes the sole proximate cause of the accident.”
See also Roanoke Railway & Electric Co. v. Whitner, (Va.) 3 S.E.2d 169.
In the recent case of Godwin v. Nixon, (N.C.) 74 S.E.2d 24, it was held that the plaintiff, a guest passenger, could not recover from the defendant as a matter of law when the car in which the plaintiff was riding struck the rear of a tractor trailer owned by defendants and which was parked within the city limits of the town of Selma, North Carolina, because the parked tractor trailer was not the proximate cause of the accident, even if the defendants were negligent in so parking the tractor trailer. 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 [19]*19can 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.
The truck of the Penn Line Service, Inc. was parked in a slight curve in a place customarily used for parking. There was no ordinance or statutory provision prohibiting that parking; therefore, defendant had a right to park its truck at such place. 2A Blashfield, Automobile Law and Practice, §1193. Boucher v. Groendyke Transport Co., (Okl.) 160 P. 2d 403. It has been held that it was not unlawful to park a vehicle on a city street under such circumstances. It was incumbent upon the defendant, Dayton Canterbury, the driver of the car in which the plaintiff was a passenger, to use due care under the circumstances to avoid the accident. He stated that he could not see over 25 or 30 feet before the accident and he therefore should have driven his car at such speed as would have enabled him to stop the vehicle before running into the truck. He cannot be excused because he said he did not see the truck. The truck was standing under a street light with other street lights within the vicinity burning and he did see the truck after the accident for a distance of 150 feet. If he had looked effectively he would have seen the truck, and if he had used the proper care in keeping a lookout the accident would not have occurred. Moore v. Burriss, 132 W.Va. 757, 54 S.E.2d 23; Moore v. Skyline Cab Co., 134 W.Va. 121, 59 S.E.2d 437. 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. Webb v. Sessler, 135 W. Va. 341, 63 S.E.2d 65; C. & O. Ry. Co. v. Hartwell, 142 W.Va. 318, 95 S.E.2d 462.
It is clear from the facts in this case that the defendant, Dayton Canterbury, was guilty of negligence [20]*20as a matter of law and that the trial conrt should have so instructed the jury.
If it can he said that the parking of the Penn Line Service, Inc. truck furnished a condition or occasion for plaintiff’s injury, it would be remote, and the intervening’, efficient cause of the injury was the driving of the Canterbury car into the rear of defendant’s truck, which is but another way of stating that the parking of the truck was not the proximate cause of the injury. 65 C.J.S., Negligence, §111 (d); Scott v. Engineering Co., 117 W.Va. 395, 185 S.E. 553; Hubbard v. Murray, (Va.) 3 S.E. 2d 397; Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672.
The cases cited and relied upon by the plaintiff are different, both as to facts and the law applicable thereto. The case of Cooper v. Teter, 123 W.Va. 372, 15 S.E.2d 152, is not in point. There was no collision of one car with the other and no causal connection between the defendant’s parked wrecker and the striking of plaintiff by an approaching automobile. The case of Wilson, Admx. v. Edwards, 138 W.Va. 613, 77 S.E.2d 164, is distinguished from the case at bar because the defendants’ truck was parked at the end of a curve in the open country and there were no lights burning independently of the vehicle to reveal the truck to the driver of the car that hit same.
The case of Porterfield v. Sudduth, 117 W.Va. 231, 185 S.E. 209, presents an entirely different situation from the one in the instant case, because in the Porter-field case the defendant’s truck was stopped in the center of the street at an intersection on a foggy night, with no lights, and the plaintiff’s husband, while proceeding in traffic, ran into the rear of defendant’s truck, thereby injuring the plaintiff. The defendant, in that case, was clearly guilty of common law negligence and the case merely held that under the circumstances the plaintiff, the wife of the driver of the vehicle, was not guilty of contributory negligence as a matter of law.
[21]*21The ease of Darling v. Browning, 120 W.Va. 666, 200 S.E. 737, is distinguished from the case at bar because the evidence was that the defendant’s truck was parked in the City of Huntington at an angle of about forty-five degrees, with the rear of the truck protruding unduly into the traffic lane, thus making the defendant guilty of common law negligence. The case of Rowe v. Safeway Stores, supra, was decided by an equally divided court and the facts are quite different from those in the case at bar. In the Rowe case the defendant stopped his truck, which was without lights, in the line of traffic in the City of Olympia, Washington, because of the dense fog, and he thereby blocked the main traveled portion of the highway. The plaintiff who was proceeding behind the defendant’s truck ran into the rear of the truck, and there was common law negligence on the part of the defendant. The only similar part of the Rowe case to the one presented here is the instruction based on the statute which is identical with the one attempted to be used in the instant case. It was held that it was error to refuse to give this instruction, but in the Rowe case there was no evidence that there were street lights burning which would reveal an object or the truck in question for five hundred feet, under normal weather conditions, such as is undisputably present in the case at bar.
It appears from the facts in this case that the parking of the truck owned by the Penn Line Service, Inc. was not the proximate cause of the accident and the injuries which resulted to the plaintiff. Although the driver of the Canterbury car, Dayton Canterbury, stated that he was driving at only about 15 or 20 miles an hour, the uncontradicted fact that his car ran 153 feet after crashing into the rear and side of the parked truck would indicate that he was traveling at a faster rate of speed. Then, too, the physical facts as indicated by the testimony and exhibits introduced in evidence and made a part of the record indicate that the Canterbury car hit the truck well [22]*22within the eight foot strip or lane used for parking purposes. The plaintiff’s witness, Officer Williams, stated that the portion of the highway ordinarily used for vehicular traffic was the two inside twelve foot lanes. The plaintiff was not driving on this portion of the street or highway at the time of the accident. It would further appear that the Penn Line Service, Inc. truck was lawfully parked in a place commonly used both day and night for parking both automobiles and trucks, and that the sole proximate cause of the accident and the injuries suffered by the plaintiff was the act of Dayton Canterbury in driving into the rear and side of the parked truck. It is also interesting to note that every person present at or near the scene of the accident, except those inside the automobile driven by Dayton Canterbury, stated that they could see at least two hundred or more feet, and even Dayton Canterbury stated that after he got out of the automobile he could see the truck, which was then about 150 feet distant. This would indicate that the windshield of the car driven by Canterbury was beclouded or both windshield wipers were not working and would confirm the statements attributed to Dayton Canterbury, made with regard to this matter, by at least two witnesses after the accident occurred. If this condition existed, and it is not necessary so to find in this case, another principle of law would be involved, because the plaintiff would be charged with some duty with regard to this matter. She either knew, or should have known by due diligence, that such condition existed and the principle expressed in the cases of Clise v. Prunty, 108 W.Va. 635, 152 S.E. 201; Herold v. Clendennen, 111 W. Va. 121, 161 S.E. 21, which would bar recovery, might well be applicable.
The assignment of error as to the alleged improper argument to the jury and the blackboard demonstration in connection therewith by the attorneys for the plaintiff has created much interest in this state. It has been briefed exhaustively, not only by counsel [23]*23for the parties in the ease at bar; bnt by amici curiae briefs of interested parties. There is a sharp conflict of authority in other jurisdictions in connection with this question and it has never been passed on in this state. However, this question is not properly presented to this Court in this case for a decision thereon, and although it is not necessary to discuss this question in the disposition of this case, we shall indicate the reason for failing to pass on it at this time because of the interest displayed in connection with this matter.
At no time during the argument of plaintiff’s counsel before the jury did counsel for the defendants make any objection whatsoever to the use of a blackboard. Three perfunctory objections were made by counsel for the defendants to alleged improper argument of counsel for the plaintiff during the final argument to the jury, but no motion was made on any of these occasions for the court to declare a mistrial or to instruct the jury not to consider the remarks of counsel. As a general rule, it is necessary for the complaining party to ask for and be refused either an instruction to the jury to disregard an alleged improper argument, or to move for a mistrial and duly except to such refusal to so instruct or grant said motion, before this Court will consider such matter. Landers v. Ohio River R.R. Co., 46 W.Va. 492, 33 S.E. 296; Given v. Diamond Shoe Co., 84 W.Va. 631, 101 S.E. 153; Keathley v. Railway Co., 85 W.Va. 173, 102 S.E. 244; State v. Statler, 86 W.Va. 425, 103 S.E. 345; McCullough v. Clark, 88 W.Va. 22, 106 S.E. 61; Deitz v. County Court, 122 W.Va. 296, 8 S.E.2d 884; Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410; Hargrow v. Watson, (Va.) 104 S.E.2d 37.
An attempt was made to make the matter concerning the blackboard a part of the record by an affidavit, after the completion of the trial. This was improper and such matter will not be considered by this Court in a separate bill of exceptions. See Townley Bros. [24]*24v. Crickenberger, 64 W.Va. 379, 63 S.E. 320 and Snodgrass v. NuGrape Co., 113 W.Va. 748, 169 S.E. 406.
For the reasons contained herein, the judgment of the Circuit Court of Raleigh County is reversed, the verdict is set aside and the defendants, Penn Line Service, Inc. and J. W. Hosey, are awarded a new trial.
Judgment reversed; verdict set aside; new trial awarded.