dissenting:
As in my opinion the judgment of the circuit court upon the evidence disclosed by the record was clearly wrong, I emphatically dissent from the decision of the majority of this Court which affirms that judgment in favor of the plaintiffs. I would reverse for the reason that the finding of the circuit court that the plaintiffs were not guilty of negligence is not supported by the evidence and that, in my opinion, it clearly appears from undisputed evidence that the plaintiffs were guilty of contributory negligence as a matter of law which bars them from any recovery against the defendant.
The material facts in connection with the collision between the Dodge automobile of the plaintiffs and the truck of the defendant are not disputed.
The collision occurred about 5:00 o’clock in the evening of January 29, 1962, on a straight section of West Virginia Route 52, a public highway, in Mercer County, which contained three lanes. One lane was for northbound traffic *218and two lanes were for southbound traffic. In front of the entrance to this section of the highway there was a road sign which directed motorists to “keep right except to pass.”
The driver of the automobile of the plaintiffs gave this version of the collision: “As I came into the lane, there was a truck ahead of me riding in the center lane, I came behind it and blew my horn; I blew it more than once, a couple of times. The driver failed to move to the right, I waited a few seconds, and pulled into the right lane, and waited a few more seconds, and he never signaled, and I started around him and blew my horn and let him know I was there; and when I blew my horn, he ran into my side and ran-me into an embankment.” He also testified that after the collision, in which the automobile of the plaintiffs was damaged, the driver of the truck stopped the truck, came back to the scene of the wreck and told the driver of the automobile of the plaintiffs that he “didn’t see” the automobile of the plaintiffs and did not know of its presence, that he “heard a horn and just pulled over.”, and that he “didn’t think to-look.”, and “just pulled over into the right lane and hit me.”
The driver of the truck of the defendant testified that immediately before the collision he was driving the truck in the passing lane, that he had passed an automobile that was moving slowly in the righthand lane, and that there was another automobile about a hundred yards in front of him that he intended to pass. He gave this version of the collision: “I heard a horn suddenly, and I thought somebody else wanted the passing lane, so I immediately pulled over to the right, and that’s when the impact happened. When I pulled over to the right, I pulled into Mr. Dunning’s car.” He testified that there was no rear view mirror in the cab of the truck, that the rear view mirror was on the left side of the truck, that there was a window in the rear of the cab, that in order to obtain a view to the rear he would have to turn and look through the window, and that he was looking ahead and did not look to the rear of the truck at and immediately before the collision.
*219The amount of the damage to the automobile of the plaintiffs was- not controverted and the only controversy between the parties involves the question of liability.
The provisions of Section 3 and Section 4, Article 7, Chapter 17C, Code, 1931, as amended, were in force and effect at the time of the collision between the automobile of the plaintiffs and the truck of the defendant. Section 3, paragraph (a), provides that “The driver of a vehicle overtaking another vehicle proceeding in the .same direction shall give an audible signal and pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.” Section 4, paragraph (a), provides that “The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions: (1) When the vehicle overtaken is making or about to make a left turn; (2) Upon a street or highway with unobstructed pavement not occupied by parked vehicles of sufficient width for two- or more lines of moving vehicles in each direction; (3) Upon a one-way street, or upon any roadway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and of sufficient width for two or more lines of moving vehicles.” Section 4, paragraph (b), provides that “The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. * * *.”
The undisputed testimony of the driver of the automobile of the plaintiffs was that within a few seconds after he blew the horn of that automobile and before the driver of the truck in response to the horn left the passing lane and entered the right lane, as he was required to do, the driver of the automobile of the plaintiffs attempted to pass to the right of the truck of the defendant as it was attempting to enter the right lane at a speed of about forty five miles per hour while the automobile of the plaintiffs was travelling at a speed of about fifty miles per hour. In attempting to pass the truck - of the defendant on its right instead of waiting a few seconds and passing it on *220its left in the passing lane, the driver of the automobile of the plaintiffs flagrantly violated all of the quoted provisions of Sections 3 and 4 of the statute and according to his own undisputed testimony was guilty of contributory negligence.
The evidence shows that the violation of the foregoing provisions of the statute by the driver of the automobile of the plaintiffs proximately contributed to the collision and the resulting damage to the automobile, of the plaintiffs. It'is clear beyond question that if the driver of the automobile of the plaintiffs had waited until the passing lane was clear or had not attempted to pass the truck of the defendant, which was in full view of the driver of the automobile of the plaintiffs, on its right as the truck of the defendant was entering the right lane of the highway, the collision in which the automobile of the plaintiffs was damaged would not have occurred. Otherwise briefly stated, if the driver of the automobile of the plaintiffs had given the driver of the truck even a reasonable opportunity to leave the passing lane and enter the right lane the collision would not have happened. In consequence the attempt of the driver of the automobile of the plaintiffs to pass the truck of the defendant on its right instead of on its left in the pássing lane constituted negligence that proximately contributed to the collision. 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, *221130 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 evidence disclosed by the record. Though findings of a trial court upon facts submitted to it in lieu of a jury are entitled to the same weight as a verdict of a. jury, General Electric Corporation v. Fields, 148 W. Va. 176, 133 S. E. 2d 780; Cotiga Development Company v. United Fuel Gas Company, 147 W. Va. 484, 128 S. E. 2d 626; Edwards v. Hylbert, 146 W. Va. 1, 118 S. E. 2d 347; Daugherty v. Ellis, 142 W. Va. 340, 97 S. E. 2d 33; Green v. Henderson, 136 W. Va. 329, 67 S. E. 2d 554; Watkins v. Norfolk and Western Railway Company, 125 W. Va. 159, 23 S. E. 2d 621; The Board of Education of Hancock County v. Hartford Fire insurance Company, 124 W. Va. 163, 19 S. E. 2d 448; Moore v. Strickling, 46 W. Va. 515, 33 S. E. 274, 50 L.R.A. 279; Hysell v. Sterling Coal and Manufacturing Company, 46 W. Va. 158, 33 S. E. 95, and though such findings are entitled to great weight, The Committee on Legal Ethics of the West Virginia State Bar v. Pietranton, 143 W. Va. 11, 99 S. E. 2d 15; Berry v. Colborn, 65 W. Va. 493, 64 S. E. 636, 17 Ann. Cas. 1018, such findings will be set aside, as will the ver-*222diet of a jury, if against the plain and unequivocal inferences arising from admitted or established facts. The Committee on Legal Ethics of the West Virginia State Bar v. Pietranton, 143 W. Va. 11, 99 S. E. 2d 15; Berry v. Colborn, 65 W. Va. 493, 64 S. E. 636, 17 Ann. Cas. 1018; Chapman v. Liverpool Salt and Coal Company, 57 W. Va. 395, 50 S. E. 601; Hursey v. Hursey, 56 W. Va. 148, 49 S. E. 367.
This Court has held in many cases that a verdict of a jury which is not supported by sufficient evidence or is against the preponderance of the evidence will be set aside by this Court. Floyd v. Floyd, 148 W. Va. 183, 133 S. E. 2d 726; Rockingham Poultry Marketing Cooperative v. The Baltimore and Ohio Railroad Company, 145 W. Va. 787, 117 S. E. 2d 504; Lester v. Flanagan, 145 W. Va. 166, 113 S. E. 2d 87; State ex rel. Shatzer v. Freeport Coal Company, 144 W. Va. 178, 107 S. E. 2d 503; Reece v. Hall, 142 W. Va. 365, 95 S. E. 2d 648; Hurt v. Gwinn, 142 W. Va. 259, 95 S. E. 2d 248; Waddell v. The New River Company, 141 W. Va. 880, 93 S. E. 2d 473; Ritz v. Kingdon, 139 W. Va. 189, 79 S. E. 2d 123; Owen v. Appalachian Power Company, 78 W. Va. 596, 89 S. E. 262; Fuccy v. Coal and Coke Company, 75 W. Va. 134, 83 S. E. 301; Booth v. Camden Interstate Railway Company, 68 W. Va. 674, 70 S. E. 559; Casto v. Baker, 59 W. Va. 683, 53 S. E. 600; Manss-Bruning Shoe Company v. Prince, 51 W. Va. 510, 41 S. E. 907; Miller v. White, 46 W. Va. 67, 33 S. E. 332, 76 Am. St. Rep. 791; Davidson v. Pittsburg, Cincinnati, Chicago and St. Louis Railway Company, 41 W. Va. 407, 23 S. E. 593; Johnson v. Burns, 39 W. Va. 658, 20 S. E. 686. The foregoing rule applies to a finding of fact by the trial court in lieu of a jury and such finding will be set aside if not supported by the evidence or is contrary to the preponderance of the evidence.
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 *223for the court. Petros v. Kellas, 146 W. Va. 619, 122 S. E. 2d 177; Graham v. Crist, 146 W. Va. 156, 118 S. E. 2d 640; Brake v. Cerra, 145 W. Va. 76, 112 S. E. 2d 466; Workman v. Wynne, 142 W. Va. 135, 94 S. E. 2d 665, and the many cases there cited. 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. As the driver of the automobile of the plaintiffs, in violating the provisions of Sections 3 and 4, Article 7, Chapter 17C, Code 1931, as amended, was 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 plaintiffs were guilty of contributory negligence as a matter of law and were not entitled to any recovery against the defendant; and the refusal of the circuit court to find that the plaintiffs were guilty of contributory negligence as a matter of law, in my judgment, constituted prejudicial error which calls for reversal of the judgment by this Court.
For the foregoing reasons and under the authorities cited and referred to in this opinion, I dissent from the holding of the majority and would reverse the judgment of the circuit court, remand the case, and award the defendant a new trial.
I am authorized to state that Judge Calhoun concurs in the views expressed in this dissenting opinion.