77 W. Va. 152 | W. Va. | 1915
The plaintiff, Virgil E. Ice, while being driven in a sleigh, in the night time, along a country road in Doddridge County, February 3, 1912, was thrown from it and injured. He brought this suit, in December, 1912, to recover damages
The defendant appeared and demurred to the declaration. The demurrer was overruled, and plea of not guilty entered and issue joined.
The case was tried to a jury at the December term, 1912. Evidence was submitted by both plaintiff and defendant. The court refused to give certain instructions asked for by plaintiff, and also refused to give all the instructions asked for by defendant except the following: “The court instructs the
In the absence of proof that the defendant was negligent as alleged, and that such negligence was the proximate cause of such injury, it was the duty of the court to instruct the jury to find a verdict for the defendant. 'Whatever may have been the practice of the courts of this State and of Virginia in former years as to excluding the plaintiff’s evidence from the jury when insufficient to sustain the action, or of directing a verdict for the defendant, the practice is now well established in this State. The practice is no longer so restricted that it can not be applied in cases where there is a scintilla of evidence, or as said in the case of Carrico v. Railroad Co., 35 W. Va. 389, “a motion by the defendant to exclude the plaintiff’s evidence upon the ground that it is not
For the foregoing reasons we are of opinion that there is no error in the judgment complained of, and it should be affirmed.
Affirmed.