We affirm in part and reverse in part. We agree with appellant that the trial court erred in removing from the jury’s consideration the issue pertaining to the injured claimant’s use of a seat belt. The record reflects competent evidence of the existence of a functioning seat belt and conflicting evidence of its use at the time of the accident in question. Notwithstanding our holding on the seat belt issue we find no abuse of discretion by the trial court in granting a new trial and affirm that order.

AFFIRMED IN PART; REVERSED IN PART.