Caldwell, Charles W.

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Volume 39 Issue 3 Article 10 April 1933 Torts--Violation of Statute of Ordinance as Prima Facie Negligence Charles W. Caldwell West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the State and Local Government Law Commons, and the Torts Commons Recommended Citation Charles W. Caldwell, Torts--Violation of Statute of Ordinance as Prima Facie Negligence, 39 W. Va. L. Rev. (1933). Available at: https://researchrepository.wvu.edu/wvlr/vol39/iss3/10 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. REGENT CASE COMMENTSered at least in part replaces money the parent must otherwiseexpend for the child. Thus indemnity insurance against injuriesto third persons is made to serve the function of accident insurancefor the child. Second, under the terms of its contract, the insur-ance company assumed the risk of liability which obviously was tobe determined independently of the existence of the contract. Butthe court looks to the existence of this insurance contract as determi-native of the primary liability. Thus liability under the contractis controlled by the contract's existence rather than by its terms.-PAr S. HUDINS.TORTS - VIoL Tio OF STATUTE OR ORDINANCE AS PRIMAFAciE NEGLIGENCE. - Plaintiff, a motorcycle officer, turned leftat an intersection from street A, passed to the right of a line ofautomobiles that were waiting in the middle of street B for trafficlight to change, and was injured in attempting to pass betweenthe second car in line and defendant's automobile, parked at anangle to the curb in violation of a municipal ordinance requiringall motor vehicles to be parked parallel with the curb. It wasfound that the plaintiff was without fault. Held: Defendant'sviolation of the ordinance was prima facie neligence.'There is general judicial adherence to the principle that theviolation of a statute enacted for the protection of others will af-ford a right of recovery, when the violation was the natural andproximate cause of an injury; 'but there is no uniformity as tothe legal effect of such conduct. A majority of the decisions holda violation is negligence per se,' a minority that it is prima facienegligence, and in a few cases it is only evidence of negligence.'In Kentucky the violation of an ordinance is not even evidence ofnegligence.'Oldfield v. Woodall, 166 S. E. 691 (W. Va., 1932).2 U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N. E. 1081 (1904);see citation in 20 R. C. L. 33. In a very recent case, State v. Cope, 167 S.E. 456 (N. C., 1933), it was held that the intentional or willful violation ofa statute or ordinance, causing injury to another, is negligence that importscriminal responsibility.3 cRickard v. Flint, 114 N. Y. 222 (1889); Southern By. Co. v. Johnson,151 Va. 345, 143 S. E. 887 (1928).'Richmond Traction Co. v. Clarke, 101 Va. 382, 43 S. E. 618 (1903);Murphy v. Philadelphia Rapid Transit Co., 285 Pa. 399, 132 Atl. 194 (1926)."Ford's Adm'r. v. Paducah City Ry., 124 Ky. 488, 99 S. W. 355 (1907);Louisville & N. R. Co. v. Dalton, 102 Ky. 290, 53 S. W. 431 (1897).1Caldwell: Torts--Violation of Statute of Ordinance as Prima Facie NegligencPublished by The Research Repository @ WVU, 1933WEST VIRGINIA LAW QUARTERLYSometimes a distinction is made between the disregard of astatute and an ordinance,' but the weight of authority is other-wise.: The minority view, however, is apparently based on asound principle; namely, a city cannot regulate civil relationsin the absence of express delegation of the power by the legisla-ture.8The West Virginia Supreme Court of Appeals has at varioustimes rendered decisions representing the three mentioned rules,'the only consistency being in the child labor cases where the primafacie rule has been repeatedly applied.' The inconsistency wasrecognized for the first time, apparently, in the instant case. Af-ter referring to the fact the court concludes with the statement:"We believe that the better rule considers the fact of the viola-tion of a statute or ordinance as prima facie negligence, sufficientto cause a directed verdict in the absence of any other showing, butrebuttable."Viewed simply as a common law problem of negligence," it isOPhiladelphia & Reading Ry. v. Erwin, 89 Pa. 71 (1879); Bade v. Nies,239 Mich. 37, 214 N. W. 171 (1927). See also Malburn, The Yiolation ofLaws Limiting Speed as Negligence (1911) 45 Am. L. REv. 220. In theprincipal case the court simply declares that there is no distinction and citesU. S. Brewing Co. v. Stoltenberg, supra n. 3.7Prest-O-Lite Co. v. Skeel, 182 id. 593, 106 N. E. 365 (1914); Cornellv. Burlington R. Co., 38 Ia. 120 (1874); Bott v. Pratt, 33 Minn. 323, 23 N. W.237 (1885; and Virginia M. Ry. Co. v. White's Adm'r., 84 Va. 498, 5 S. E.573 (1888).8Bain v. Ft. Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 834(1915), where it was said that a city could not enlarge the common law orstatutory lfabilities of its citizens.0 Evidence of negligence, Krodel v. B. & 0. R. Co., 99 W. Va. 374, 128 S.E. 824 (1925).Prima facie negligence, Tarr v. Lumber Co., 106 W. Va. 99, 144 S. E. 878(1929), and cases cited infra., n. 10.Negligence per se, Ambrose v. Young, 100 W. Va. 452, 130 S. E. 810 (1925)(driving an automobile past speed limit set by city ordinance); Melton v.C. & 0. Ry. Co., 71 W. Va. 701, 78 S. E. 369 (1913) (backing a car over acrossing without warning in violation of an ordinance); Bowles v. C. & 0. By.Co., 61 W. Va. 272, 57 S. E. 131 (1907) ; Ashley v. Kanawha Valley TractionCo., 60 W. Va. 306, 55 S. E. 1016 (1906) (where a street car was movingbeyond speed limit set by city council)."Bowling v. Guyan Lumber Co., 105 W. V. 309, 143 S. E. 86 (1928);Thompson v. Coal & Coke Co., 104 W. Va. 135, 139 S. E. 642 (1927); Willsv. Gas Coal Co., 104 W. Va. 19, 138 S. E. 749 (1927) ; Bobbs v. MorgantownPress Co., 89 W. Va. 206, 108 S. E. 879 (1921); Waldron v. Garland Poca-hontas Coal Co., 89 W. Va. 426, 109 S. E. 729 (1921); Mangus v. Coal Co.,87 W. Va. 718, 105 S. E. 909 (1921); Griffith v. American Coal Co., 75 W.Va. 686, 84 S. E. 621 (1915); Dickinson v. Stewart Colliery Co., 71 W. Va.325, 76 S. E. 654 (1912) ; Blankenship v. Coal Co., 69 W. Va. 74, 70 S. B. 863(1911) ; Daniel v. Big Sandy C. & C. Co., 68 W. Va. 491, 69 S. B. 993 (1910) ;Norman v. Coal Co., 68 W. Va. 405, 69 S. B. 875 (1910). See Note (1922) 28W. VA. L. Q. 233.UAs a matter of statutory interpretation there is serious doubt that anenactment of the sort involved in the principal case regulates civil relations.2West Virginia Law Review, Vol. 39, Iss. 3 [1933], Art. 10https://researchrepository.wvu.edu/wvlr/vol39/iss3/10RECENT CASE COMMENTSbelieved that the per se rule imposes too much faith in a statutorystandard supported solely by a criminal sanction by accepting itas an unvarying civil standard.' The prima facie rule is not opento this objection nor is it subject to the criticism that it makes thecivil effect of a violation of a statutory criminal standard an un-known quantity calculated to add to the uncertainty of jury litiga-tion, a charge that may fairly be made against the evidence ofnegligence view.-CHARrZS W. CALDWELL.The courts are inclined to confuse this phase of the problem with the com-mon law angle discussed in the text. See Norman v. Coal Co., 68 W. Va. 405,69 S. E. 857 (1910). See generally, Thayer's article, Public Wrongs andPrivate Wrongs (1914) 27 HAnv. L. REv. 317; Lowndes, Civil LiabilityCreated by Criminal Legislation (1932) 16 M m. L. REV. 361 and Morris,The Relation of Criminal Statutes to Tort Liability (1932) 46 HAMW. L. REv.453.'2The nuisance situation is a suggestive analogy. It is common learningthat courts will not accept as final the judgment of municipal bodies asto what is a nuisance, apart from nuisances per se under common lawstandards. See JoYcE, LAw or NUIsAxcEs (1906) § 330 et seq. Why im.pose greater confidence in the judgment of municipal bodies in the negligenceset-upI3Caldwell: Torts--Violation of Statute of Ordinance as Prima Facie NegligencPublished by The Research Repository @ WVU, 1933

Torts--Violation of Statute of Ordinance as Prima Facie Negligence

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Torts--Violation of Statute of Ordinance as Prima Facie Negligence

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