Scott v. Engineering Co.

13 Citing cases

  1. Divita v. Trucking Co.

    129 W. Va. 267 (W. Va. 1946)   Cited 39 times
    In Divita v. Atlantic Trucking Company, 129 W. Va. 267, 40 S.E.2d 324, the opinion contains these statements: "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.

    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.

  2. Smith v. Line Service

    145 W. Va. 1 (W. Va. 1960)   Cited 17 times

    " 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 truck 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:

  3. Costello v. City of Wheeling

    117 S.E.2d 513 (W. Va. 1960)   Cited 17 times

    " In the majority opinion, the testimony of a civil engineer to the effect that terrazzo, when properly constructed with sufficient abrasive, is not slippery when wet was noted, and the Court observed that from this testimony "and from other evidence" the jury would have been justified in finding that the terrazzo when wet was slippery because of an inherent defect in construction. In this jurisdiction, violation of a statute or ordinance is prima facie evidence of negligence. Barniak v. Grossman, 141 W. Va. 760, 93 S.E.2d 49; Morrisv. City of Wheeling, 140 W. Va. 78, 82 S.E.2d 536; Moore v. Skyline Cab, Inc., 134 W. Va. 121, 59 S.E.2d 437; Scott v. Hoosier Engineering Co., 117 W. Va. 395, 185 S.E. 553. Of course, it is true that the violation of such an ordinance or statute must be the proximate cause of an injury. But primary negligence, contributory negligence and proximate cause are questions for jury determination unless there is no evidence upon which to found a verdict for a plaintiff, or conflicting evidence clearly preponderates in favor of the defendant. There was evidence in this case from which the jury could have found that Penn violated two city ordinances in laying the terrazzo onto the concrete sidewalk in front of its entrance.

  4. Cabral v. Ralphs Grocery Co.

    179 Cal.App.4th 1 (Cal. Ct. App. 2010)

    2d 131, 133] [defendant's vehicle, even if parked illegally, was not proximate cause of collision]; Smith v. Perm Line Serv. (1960) 145 W.Va. I, 19-20 [ 113 S.E.2d 505, 516] [plaintiff passenger, whose car struck a truck that was parked on the highway, was denied recovery of damages because the driver of the car was the proximate cause of plaintiffs injuries]; Duff v. Lykins (Ky. 1957) 306 S.W.2d 252, 254-255 [owner of truck parked on a state highway within the city limits was not liable for injuries sustained by occupant of a vehicle that collided with the unlighted truck at night where such parking was not prohibited by city ordinance]; Godwin v. Nixon (1953) 236 N.C. 632, 641, 642 [ 74 S.E.2d 24, 30-31] [plaintiff, whose car struck rear of tractor-trailer which was negligently parked, was denied recovery as a matter of law because the sole proximate cause of such accident was the driving of the car into the parked trailer when the driver saw or should have seen the parked trailer]; Scott v. Hoosier Eng'g Co. (1936) 117 W.Va. 395, 397-398 [ 185 S.E. 553] [plaintiff had a duty to pay attention to his view of the road and thus manner in which defendant's truck was parked, even though in violation of statute, did not proximately cause the accident].) There is also limited contrary authority.

  5. Spaulding v. Anchor Motor Freight, of Delaware

    337 F.2d 361 (4th Cir. 1964)

    Such contributory negligence is an absolute bar to recovery in West Virginia, whatever the fault of the defendant. The District Court's conclusion was in accordance with the West Virginia authorities. Smith v. Penn Line Service, Inc., 145 W. Va. 1, 113 S.E.2d 505; Scott v. Hoosier Engineering Co., 117 W. Va. 395, 185 S.E. 553; Divita v. Atlantic Trucking Co., 129 W. Va. 267, 40 S.E.2d 324; Wolfe v. Beatty Motor Express, Inc., 143 W. Va. 238, 101 S.E.2d 81. Affirmed.

  6. Jenkins v. J. C. Penney Casualty Ins. Co.

    167 W. Va. 597 (W. Va. 1981)   Cited 150 times   2 Legal Analyses
    Holding that an implied cause of action exists under West Virginia Code § 33-11-4

    "[W]e have said in negligence cases that the violation of a statute or ordinance is prima facie evidence of negligence. See, e.g., Costello v. City of Wheeling, 145 W. Va. 455, 461, 117 S.E.2d 513 (1960); Barniak v. Grossman, 141 W. Va. 760, 765, 93 S.E.2d 49 (1956); see Scott v. Hoosier Engineering Co., 117 W. Va. 395, 185 S.E. 553 (1936). We stated the following qualification to this rule in Syllabus Point 1 of Steiner v. Muldrew, 114 W. Va. 801, 173 S.E. 891 (1934):

  7. Hurley v. Allied Chemical Corp.

    164 W. Va. 268 (W. Va. 1980)   Cited 57 times   1 Legal Analyses
    Recognizing cause of action where employee denies employment to otherwise qualified individual on sole basis that such individual received services for mental illness, mental retardation or addiction

    This Court has not had occasion to give detailed consideration to the question of under what circumstances a statute gives rise to an implied private cause of action. In oblique reference to this question, we have said in negligence cases that the violation of a statute or ordinance is prima facie evidence of negligence. See, e.g., Costello v. City of Wheeling, 145 W. Va. 455, 461, 117 S.E.2d 513 (1960); Barniak v. Grossman, 141 W. Va. 760, 765, 93 S.E.2d 49 (1956); see Scott v. Hoosier Engineering Co., 117 W. Va. 395, 185 S.E. 553 (1936). We stated the following qualification to this rule in Syllabus Point 1 of Steiner v. Muldrew, 114 W. Va. 801, 173 S.E. 891 (1934):

  8. Yates, et al. v. Mancari, et al

    153 W. Va. 350 (W. Va. 1969)   Cited 26 times

    See Dunning v. Barlow and Wisler, Inc., 148 W. Va. 206, 133 S.E.2d 784; 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; Webb v. Sessler, 135 W. Va. 341, 63 S.E.2d 65; Twyman v. Monongahela West Penn Public Service Company, 118 W. Va. 330, 191 S.E. 541; Estep v. Price, 93 W. Va. 81, 115 S.E. 861; Anderson v. Baltimore and Ohio Railroad Company, 74 W. Va. 17, 81 S.E. 579, 51 L.R.A., N.S., 888; Schwartz v. Shull, 45 W. Va. 405, 31 S.E. 914. In Divita v. Atlantic Trucking Company, 129 W. Va. 267, 40 S.E.2d 324, the opinion contains these statements: "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." In Lilly v. Taylor, 151 W. Va. 730, 155 S.E.2d 579, quoting from Stuck v. Kanawha and Michigan Railway Company, 76 W. Va. 453, 86 S.E. 13, this Court said: "The proximate cause of an injury is the superior or controlling agency from which springs the harm, as contradistinguished from those causes which are merely incidental or subsidiary to such principal and controlling cause.

  9. Lewis, et al. v. McIntire

    150 W. Va. 117 (W. Va. 1965)   Cited 12 times

    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 W. Va. 352, 127 S.E.2d 726; Spurlin v. Nardo, 145 W. Va. 408, 114 S.E.2d 913; Barniak v. Grossman, 141 W. Va. 760, 93 S.E.2d 49; Walker v. Robertson, 141 W. Va. 563, 91 S.E.2d 468; Morris v. The City of Wheeling, 140 W. Va. 78, 82 S.E.2d 536; Pitzer v. M. D. Tomkies and Sons, 136 W. Va. 268, 67 S.E.2d 437; Moore v. Skyline Cab, Inc., 134 W. Va. 121, 59 S.E.2d 437; Somerville v. Dellosa, 133 W. Va. 435, 56 S.E.2d 756; Rich v. Rosenshine, 131 W. Va. 30, 45 S.E.2d 499; Skaff v. Dodd, 130 W. Va. 540, 44 S.E.2d 621; Powell v. Mitchell, 120 W. Va. 9, 196 S.E. 153; Scott v. Hoosier Engineering Company, 117 W. Va. 395, 185 S.E. 553; Oldfield v. Woodall, 113 W. Va. 35, 166 S.E. 691; Tarr v. Keller Lumber and Construction Company, 106 W. Va. 99, 144 S.E. 881, 60 A.L.R. 570; Bobbs v. Morgantown Press Company, 89 W. Va. 206, 108 S.E. 879; Mangus v. Proctor-Eagle Coal Company, 87 W. Va. 718, 105 S.E. 909; Norman v. Virginia-Pocahontas Coal Company, 68 W. Va. 405, 69 S.E. 857, 31 L.R.A., N.S., 504. Assuming that the defendant was negligent in that he failed to keep a proper lookout when he entered his left lane of the highway in attempting to pass the automobile ahead, nevertheless, under the rule of the above cited cases, the infant plaintiff was guilty of contributory negligence as a matter of law and for that reason is not entitled to any recovery against the defendant. The refusal of the circuit court to hold that the infant plaintiff was guilty of contributory negligence as a matter of law and in refusing to give Instruction No. 1, which would have directed the jury to return a verdict in favor of the defendant,

  10. Dunning v. Barlow Wisler, Inc.

    133 S.E.2d 784 (W. Va. 1963)   Cited 24 times

    This is established by the undisputed evidence and by the testimony of the driver of the automobile of the plaintiffs. 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 probable cause of an injury. Payne v. Kinder, 147 W. Va. 352, 127 S.E.2d 726; Spurlin v. Nardo, 145 W. Va. 408, 114 S.E.2d 913; Barniak v. Grossman, 141 W. Va. 760, 93 S.E.2d 49; Walker v. Robertson, 141 W. Va. 563, 91 S.E.2d 468; Morris v. The City of Wheeling, 140 W. Va. 78, 82 S.E.2d 536; Pitzer v. M. D. Tomkies and Sons, 136 W. Va. 268, 67 S.E.2d 437; Moore v. Skyline Cab, Inc., 134 W. Va. 121, 59 S.E.2d 437; Somerville v. Dellosa, 133 W. Va. 435, 56 S.E.2d 756; Rich v. Rosenshine, 131 W. Va. 30, 45 S.E.2d 499; Skaff v. Dodd, 130 W. Va. 540, 44 S.E.2d 621; Powell v. Mitchell, 120 W. Va. 9, 196 S.E. 153; Scott v. Hoosier Engineering Company, 117 W. Va. 395, 185 S.E. 553; Oldfield v. Woodall, 113 W. Va. 35, 166 S.E. 691; Tarr v. Keller Lumber and Construction Company, 106 W. Va. 99, 144 S.E. 881, 60 A.L.R. 570; Bobbs v. Morgantown Press Company, 89 W. Va. 206, 108 S.E. 879; Mangus v. Proctor-Eagle Coal Company, 87 W. Va. 718, 105 S.E. 909; Norman v. Virginia-Pocahontas Coal Company, 68 W. Va. 405, 69 S.E. 857, 31 L.R.A., N.S., 504. Assuming that the defendant was negligent in that the driver of its truck failed to look when he attempted to enter the right lane, nevertheless, under the rule of the above cited cases the plaintiffs were guilty of negligence which proximately contributed to the damage sustained by their automobile in the collision between it and the truck of the defendant. The findings of the trial court in lieu of a jury in this case that the defendant was guilty of negligence which was the proximate cause of the accident and that the plaintiffs were not guilty of contributory negligence are clearly not supported by the undisputed evide