150 W. Va. 117 | W. Va. | 1965
In this civil action instituted in the Circuit Court of Marion County, West Virginia, the plaintiffs, Edward Lewis, an infant sixteen years of age when injured, who sues by Laura
The case was submitted for decision in this Court upon the record, the "written brief in behalf of the plaintiffs, and the written brief and the oral argument of counsel in behalf of the defendant.
The defendant assigns as error the action of the circuit court in refusing to give Instruction No. 1, offered by the defendant, which would have directed the jury to return a verdict for the defendant for the assigned reasons that the evidence shows that the infant plaintiff was guilty of negligence which caused or contributed to his injuries and that the defendant was not guilty of actionable negligence.
The only questions for decision are whether the infant plaintiff was guilty of negligence which caused or contributed to his injuries and whether the defendant was guilty of actionable negligence which was the proximate cause of the injuries to the infant plaintiff.
At the time of the collision the automobile driven by the defendant was traveling at the rate of about forty miles per hour. The defendant testified that he did not see the bi
This Court has consistently held in many cases that when the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for jury determination. Pygman v. Helton, 148 W. Va. 281, 134 S. E. 2d 717, and the many cases cited in the opinion in that case. There is little, if any, dispute in the material facts disclosed by the evidence but inasmuch as reasonable men could draw different conclusions from those facts as to whether the defendant was guilty of negligence, and as the jury by its verdict has found that he was, the verdict in that respect will not be disturbed by this Court on this appeal.
Though ordinarily the questions of negligence and contributory negligence are for the jury, when the material facts are undisputed and only one inference may be drawn from them by reasonable minds, the questions of negligence and contributory negligence are questions of law for the court. Petros v. Kellas, 146 W. Va. 619, 122 S. E. 2d 177;
In Krodel v. Baltimore and Ohio Railroad Company, 99 W. Va. 374, 128 S. E. 824, this Court held in point 5 of the syllabus that “Where the facts which control are not disputed and are such that reasonable minds can draw but one conclusion from them, the question of contributory negligence barring recovery is one of law for the court.” See also Barr v. Curry, 137 W. Va. 364, 71 S. E. 2d 313; Daugherty v. Baltimore and Ohio Railroad Company, 135 W. Va. 688, 64 S. E. 2d 231; Yuncke v. Welker, 128 W. Va. 299, 36 S. E. 2d 410; McLeod v. The Charleston Laundry, 106 W. Va. 361, 145 S. E. 756; Robertson v. Monongahela Power and Railway Company, 99 W. Va. 356, 128 S. E. 829; Jameson v. Norfolk and Western Railway Company, 97 W. Va. 119, 124 S. E. 491; Cavendish v. Chesapeake and Ohio Railway Company, 95 W. Va. 490, 121 S. E. 498; Robinson v. Chesapeake and Ohio Railway Company, 90 W. Va. 411, 110 S. E. 870.
At the time of the collision, as already indicated, the bicycle on which the infant plaintiff was riding was not equipped with any lights or other signalling device. The statute then in effect, Section 7, paragraph (a), Article 11, Chapter 17C, Code, 1931, as amended, provided that every bicycle when in use at nighttime shall be equipped with a lamp on the front which shall emit a white light visible from a distance of five hundred feet to the front and with a red reflector on the rear of a type approved by the department which shall be visible from a distance of fifty feet to three hundred feet to the rear when directly in front of lawful upper beams of head lamps on a motor vehicle. In riding his bicycle at nighttime, without the lights required by the statute, the infant plaintiff was operating his bicycle in violation of the statute. This Court has held in many cases that the violation of a statute or an ordinance is prima facie actionable negligence when it is the natural and proximate cause of an injury. Payne v. Kinder, 147
The judgment of the circuit court is reversed, the verdict of the jury is set aside, and this case is remanded to that court for a new trial which is hereby awarded the defendant.
Reversed and remanded.