Young v. West Virginia & P. R.

Dent, Judge: The West Virginia & Pittsburg Railroad Company obtained a writ of error to the judgment of the circuit court [219] of Harrison county confirming the judgment of a justice of the peace in favor of Lavernia E. Young, administratrix, for the sum of one hundred and twenty dollars. The only error relied on is that the verdict of the jury was contrary to the law and the evidence. The plaintiff’s intestate and his horse were killed, and his buggy was badly damaged, at a crossing in the county of Harrison, a few miles from Clarks-burg. This suit was to recover the damages occasioned by the loss of the horse and injury to the buggy. The negligence insisted on against the company was that the train was running one hour late, at an unusual speed, and the engineer and fireman were negligent in not keeping a proper lookout at this known to be dangerous crossing, and in not giving the proper signals required by statute. The defense was contributory negligence on the part of the deceased. The evidence of numerous witnesses was taken, which is plainly conflicting as to whether the signals were given, while all the circumstances show that a proper lookout for this crossing was not being kept. The fireman testifies that the deceased, on seeing the train coming, whipped up his horse, and endeavored to cross ahead of the train, while there are some facts and circumstances tending to contradict him, and the jury hearing his evidence and seeing him testify refused to credit his statement. In the absence of the deceased, the evidence being so conflicting, and dependent to some extent on the manner, beaifing, and conduct of the witnesses, this Court is unable to say that the jury did not properly weigh the evidence, and fairly determine the credibility of the witnesses. It is therefore impossible to hold that the evidence manifestly and decidedly preponderates against the verdict. As to questions of fact dependent on oral testimony, the verdict of a jury is entitled to great consideration and weight, and it should not be lightly set aside because the evidence, as contained in the record, may apparently, in comparing the number of witnesses, be against the finding, for there are many thing's besides the testimony of the witnesses as taken down by a reporter that the jury is permitted to consider, and of such character that they cannot be made to appear in the record for the inspection of this Court. Akers v. Dewitt, 41 W. Va., 229, [220] (23 S. E. 669); Sisler v. Shaffer, 43 W. Va., 769, (28 S. E. 721). Ia accordance with the former rulings of this Court in similar cases, the judgment is affirmed.