Bias v. Chesapeake & Ohio Railway Co.

DENT, PRESIDENT: “On the 12th day of July, 1897, plaintiff’s intestate, Clara Edna Bias, an infant, about fifteen months old, had strayed away from the home of its parents, which was — 351 — about 50 yards away, and’ gotten upon the track of the defendant, near Wilson’s Station, a flag stop between G-uy-andotte and Barboursville, at about 7 o’clock in the evening, and was struck by defendant’s local passenger train No. 13, going west, and afterwards, on the 16th, died. The train was running at the rate of between 45 and 48 miles an hour when the child was discovered on the track, about 150 to 200 yards ahead of the train.” This abstract i,s taken from defendant’ petition. It was further shown in evidence that there was a clear view of the point on the track where the child was struck eastward sis hundred to seven hundred yards, in the direction in which the train was coming. There were no obstacles in the way, and' it was & bright, sunshiny evening. The child had been at home about ten minutes before it was struck. The engineer testifies that he did not see the child until he was about two hundred yards of it, and he first thought it was a red rooster, and, as soon as he recognized it to be a child, he made every effort to stop the train, and managed to stop it in five hundred and ninety feet, but too late to save the child; that there was both a glare of light and shadow along the track, which interfered with his vision; that he was keeping a vigilant lookout, consistent with his other duties; that the train was behind time, and he was running rapidly to make it up; that he was looking right over the spot where the child was, to see if there was any signal to stop at Wilson’s Station, just beyond. The fireman’s evidence was about the same as the engineer’s. There is some attempt to show that the child’s life might have been saved by an operation after it had been struck, but this is merely speculative, and beyond the range of possibility into the realm of miracles. The attorneys could just as well contend that the. child was not killed by being struck by the train, but by the operation performed by the physicians, cutting its skull open in an attempt to remove the pressure on the brain. The jury heard the evidence, and found a verdict in favor of the plaintiff for one thousand dollars. The defendant made a motion to set it aside, as contrary to the law and the evidence. The circuit court overruled1 the motion, and entered judgment. The defendant relies on the following assignments — 352 — of error. (1) The court erred in overruling defendants demurrer to plaintiff’s declaration. (2) The court erred in allowing the. plaintiff’s attorneys to ask the witnesses, John E. Bias, Mrs. J. E. Bias, and John Wilson, ‘How far east of the point where the child was struck could a person standing on the track see an object the size of the child in controversy, at that point?’ (3) The court erred in allowing questions 5 and 6, on page 82, to be asked J. E. Bias, and question 1, on page 83, to be asked Mrs. John E. Bias, and in refusing to- strike out the answers thereto. (4) The court erred in allowing a supposed rule of the company to be read to the jury, which was not shown to be a rule of the company in force at the time of the accidents (5) The court erred in allowing John Reid' and W. W. Poin-dexter to express opinions to the jury as to the distance in ■which an emergency stop of a train of the description of the one in controversy could be made, they, not having been shown to have had sufficient knowledge to give expert evidence. (6) The court erred in refusing to sustain defendant’s objection to questions 1, 2, 3, and 4, on page 120, asked J. H. Williams on cross-examination, and in refusing to. strike out the answers thereto. (7) The court erred in allowing questions 3, 4, 5, and 6, on page 144, to be asked John Clark, and in refusing to strike out his answers thereto, as said questions, regarding his seeing a chicken on the track, were irrelevant and misleading, and the asking and the answering of each of said questions was to the prejudice of your petitioner. (8) The couiit erred in refusing to 'discharge the jury upon the filing of the affidavits of F. B. Enslow, W. O. Walton, and O. J. Wilkinson, and the counter affidavit of Cordon O’Bierne, and in refusing to set aside the verdict of the jury when rendered, because of the experiments made by the jury, or in their presence, while viewing the ground at the place of accident. Said experiments, not being in the presence of the court, were illegal and improper, and the jury, standing some six hundred yards east of the point of accident, were surrounded by very different circumstances from those surrounding the engineer on a moving train, and these said experiments were greatly to the prejudice of the petitioner. (9) The court erred in giving plaintiff’s instructions 1 and 2. No. 1 does not correctly state the law, — 353 — is inconsistent with instructions giving for the defendant, and misleads the jury. The jury, out of court and out of the presence of the judge, having taken evidence by way of experiment, should have been discharged, and not instructed, in plaintiff’s instruction No. 2, to disregard the experiments made by them; for this was wholly ineffectual to erase any impression that may have been made on the minds of the jury by the experiment. ‘ The making of this experiment was upon a point vital in the case, and was to the prejudice of this petitioner. (10) The court erred in refusing to set aside the verdict of the jury, as contrary to the law and the evidence.” , As to assignments Nos. 3, 4, 5, 6, and 7, it is sufficient to refer to the rules laid down in the cases of State v. Harr, 38 W. Va. 59, (17 S. E. 794), wherein it is held that “to make available in the appellate court an objection taken during the trial to the admission of evidence, the point must be made and properly saved by some bill of exceptions. It is not enough merely to note the objections and1 exception in the certificate of evidence.” Syl., point 4. And Gregory's Adm'r v. Railroad Co., 37 W. Va. 606, (16 S. E. 819 Syl., point 2), in these words: “A motion for a new trial should indicate, in a way sufficient to- call the attention of the court to them, the grounds for such new trial, unless the point has been made the subject of a bill of exceptions. Where it is claimed that evidence has been improperly admitted, and1 an exception noted, but no bill of exceptions taken, and the record states that the motion for a new trial was based on certain specific grounds, not naming the admission of such evidence, that exception wili not be considered in the appellate court, but will be treated as waived.” There are three bills of exceptions filed. The first relates to the refusal of the court to discharge the jury for improper conduct. The second contains the evidence, and also relates to the misconduct of the jury in experimenting with the dress the deceased had on. The third relates to the evidence showing how far a person the size of the child could be seen when struck, etc. Neither of these bills of exceptions refer to and especially include the testimony referred to in assignments Nos. 3, 4, 5, 6, and 7, nor does the motion for a new trial do- so. Nothing — 354 — showing they were brought to the attention of the trial court on the motion for a new trial, they will be regarded as waived, and. will not be considered by this court. Assignment No. 9 relates to the instructions, but, as these are not a part of the record, they cannot be here considered, although copied therein. Trump v. Coke Co. 46 W. Va. 238, (32 S. E. 1035). This leaves assignments Nos. 1, 2, 8, and 10 for disposal. No. 1 relates to the demurrer to the declaration. Defendant’s counsel insist that “the declaration fails to allege what duty, if any, the defendant owed to the plaintiff’s intestate, or to allege any facts from which .such duty could be intelligently inferred, and a breach of that duty.” The declaration alleges that, “on the said defendant’s said railroad near where it passes a flag station, known as Wilson’s Switch, in said county, between the station at the said' town of Barboursville and the .station at the said town of G-uyandotte, the said defendant, by its servants and employes,” defendant negligently ran its locomotives, engines, tenders, railroad cars, and carriages, with great force and violence, against Clara Edna Bias, injuring her so badly that she subsequently died. One locomotive, tender, and cars would have been sufficient, but the others and carriages may be deemed surplusage. From this the duty that the company owes to every human being on its track, whether employe or not, to preserve life if possible, and not destroy it negligently, may be intelligently inferred from the language used. The breach of such duty was the negligently killing of the deceased: It can hardly be maintained1, at the present time, at least, that a railroad,company can negligently kill any one on its tracks, whether passenger, employe, stranger, trespasser, adult or child. It holds its tracks for the public good by sufferance of the people, and, though it cannot be hung, electrocuted, or imprisoned, it cannot take human life with impunity. For death caused by its negligence it must answer in damages. In the case of Railroad Co. v. Whittington's Adm'r 30 Grat 810, the fault of the declaration was that it did not show where the deceased was at the time he was killed (See Syl., point 2, p. 805), or how he was injured. The present declaration shows both where and how, and comes — 355 — within the case of Poling v. Railroad Co. 38 W. Va. 645, (18 S. E. 782). The second assignment seeks to exclude from the jury the evidence of witnesses as to the distance it was possible to see a child of the size of the decedent along or on the railroad track, in the direction in which the train was coming. The evidence is perfectly competent. It is a physical fact easily contradicted if false, and, while the witnesses were not on a rapidly moving train, engaged in its management, yet the jury had a right to know the condition of the place of accident. This evidence was hardly necessary, after the jury was taken to view the place, as they could see for themselves whether the physical fact existed or not. The eighth assignment is to the fact that the sheriff took the dress of the deceased, and placed it on a stick about eighteen inches high at the point oftheaccident, and allowed the jury to- proceed up the railroad in the direction the train was coming, and observe how far such object could be seen. This is but the mere demonstration of a physical fact, and not an experiment. Nor is there anything about it that could possibly mislead the jury, as it is certainly possible for them -to distinguish between a man in charge of an engine at a high rate of speed ¡a'nd one standing still on the ground. This is a matter also susceptible of proof, and the jury has the right to hear and weigh the evidence. It is admitted that the court, out of precaution, directed the jury to disregard the dress demonstration. All it showed, however, was how far the dress, in the position it was placed, could be seen by a person standing on the track, — a mere physical fact, as the view of the .rails, track, and surrounding country were, which was shown to the jury for the purpose of enabling them to more clearly understand the facts given in evidence, and arrive at a correct verdict. It is impossible to "understand how the fact that they could see this little red dresfs folr eight hundred yards or more could in any manner induce them to agree to a verdict contrary to the law and the evidence. Such use of the little red dress, if error at all, could only be regarded as harmless error. Thomp. Trials, sectioh 905. The tenth and last assignment of error relates to the — 356 — motion to set aside the verdict as contrary to the law and the evidence. It is now the settled law that this Court will not reverse a judgment found’ed on the verdict of the jury unless the evidence plainly and decidedly preponderates against the same.- Trump v. Coke Co. before cited; Gilmer v. Sidenstricker, 42 W. Va. 52, (24 S. E. 566). In the present case the vast preponderance of evidence shows that it was possible for the engineer to have -seen the child eight hundred yards away, and that he could stop the train, as he did do, in less than two hundred yards. The engine was going at the rate of forty-eight miles per hour, to make up lost time. It ran the four hundred yards in which it was in sight of the point where the child was killed, before the engineer saw it, in twelve seconds. • This was too short a time for the child to have gotten ¡on the track. Hence it must have been there when the train came m view of it. So there was no physical obstacle in .'the way of the engineer’s seeing the child. If we follow the old rule and exclude the defendant’s contradictory evidence, we must sustain the verdict; for the presumption arises that, if the engineer failed to do what he could have done, then he was not keeping the lookout the law requires. He testifies that he was looking straight ahead all the time, right across the place where the child was struck, for a signal at the next station. He was trying to make up for lost time, was running rapidly, was seven minutes late, and trying to make Huntington on time. His mind was intent on his business, and he was not keeping lookout for such small trespassers on the track. The engineer’s excuse for not seeing the child before he did was because there was a glare of light on the track in some' places, and a -shade in others, which made it very difficult to see an object so small as the child for any distance. A little over two hundred yards from it he first noticed it, and thought it was a red rooster, but, on closer inspection, he saw it was a child, and he immediately reversed his engine, put on the air brakes, and did all in his power to save it, and failed. With the engineer’s evidence expunged, the physical facts and circumstances sustain the verdict, and his evidence as to the rate that he was going, his intentness in making up lo,st time, and watching for the signal at the next station, rather tend to sustain the verdict, as showing that neither — 357 — bis mind nor eye was following tbe track for trespassers. No one could cberisb tbe thought for a moment that be purposely killed tbe child. Nor is such a question presented for consideration. But tbe sole question is as to whether be was keeping such lookout for helpless trespassers on tbe track, consistent with bis other duties, as tbe law requires, or was be negligent in this respect. “We cannot here reject tbe witness, nature telling us that tbe sharp eye of an engineer, more surely than tbe unpracticed eye, will almost certainly see, in bright daylight, a rock, log, or person ahead on a level, unobstructed track.” Gunn v. Railroad Co., 42 W. Va. 676, (26 S. E. 546). In this case tbe question of negligence is one of law and fact, and was therefore for tbe jury, under tbe instruction of tbe court. Raines v. Railway Co., 39 W. Va. 50, (19 S. E. 565). It all depends on tbe evidence of tbe engineer. If bis evidence is taken as true in all respect, then tbe verdict is wrong. If false in any particular, tbe jury have tbe right to reject it, they alone can pass on bis credibility. “When tbe jury has discredited witnesses, and tbe circuit court has approved tbe verdict, it is a most hazardous thing for this Court to overrule them, because we cannot see the witnesses, observe their countenances, their gesture, their bearing and demeanor, as did tbe jury and tbe judge; we are not persons in the drama of tbe trial. We cannot see all tbe figures and incidents in tbe scene of tbe trial.” Gilmer v. Sidenstriker, 42 W. Va. 57, (24 S. E. 568). '“This doctrine especially applies where tbe credibility of witnesses is involved. Everywhere we can find it asserted.” Young v. Railroad Co. 44 W. Va. 218, (28 S. E. 932); Scott v. Railroad Co., 43 W. Va. 484, (27 S. E. 211); Akers v. De Witt, 41 W. Va. 229, (23 S. E. 669). It would be matter of pleasure to sustain tbe evidence of tbe engineer, if tbe law permitted it. Tbe law takes his credibility'from tbe court, and places it with tbe jury. He is an interested witness. His apparent negligence is tbe alleged cause of tbe accident, be would naturally want to relieve himself'from blame, and remain in good repute with bis employers. His future employment might depend thereon. Tbe common law, through abundant caution, out of tenderness for tbe frailties of human nature, excluded tbe tes — 358 — timony of those in interest, not for the reason that all men, owing to interest, would swear falsely, but that many, under great temptation, would either testify falsely, color their evidence, or suppress the truth. Our present law, with more confidence in the integrity of human nature, with but few exceptions, allows all witnesses, however great their interest in the result, to testify, and leaves their credibility, and the weight to be given to their evidence, to their fellow men who compose the jury. This is a duty that cannot be imposed on the court, and litigants have the right to have it exercised by the jury, where the law places it. It is a constitutional guaranty. The engineer may have told the truth that he was keeping a vigilant lookout, but that the glare of the setting sun, and the shadow of the mountain along the track, interfered with his vision, and prevented him from seeing the child until too late to save it. But the jury to whom this question was submitted has said not. The trial court has sustained their finding. The trial court may have done wrong, and the jury may have done wrong, but it is about a matter of which they are the exclusive judges, and with which this court is powerless to interfere. , Nor does the question of contributory negligence arise in this case. The parents of the child were certainly negligent in a degree in allowing it to wander upon the track. For this they have been severely punished by the suffering and loss of their child. Negligence, to be contributory, must be a proximate cause of the accident. This action is founded on the theory that after the defendant became, or could have become, aware of plaintiff’s negligence by a proper lookout, it was guilty of an act of negligence in not keeping such lookout, which became the sole proximate cause of the Occident. In other words, if the lookout the law requires had been kept, the accident would not have occurred, but would have been avoided, notwithstanding the prior negligence of the plaintiff. Schwartz v. Shull, 45 W. Va. 405, (31 S. E. 914) ; Beach, Contrib. Neg. section 54; Shear. & R. Neg. (5th Ed.) section 99; Tholmp., Neg. 1157, note. The question of contributory negligence, if it did arise, was also for the jury, as it was a mixed question of law and fact. The parents did not permit their child! to play on the track, but, in an ungua'ded moment, — 359 — it slipped, away from them, and was only gone a short space of ten minutes, when, returned to them in a dying condition. The eyes of parents cannot continually be on their children, but, like the engineer, they have othefr duties' to perform which require attention; especially the poorer classes, in this country forced to continually struggle for the means to support themselves and their families. They cannot have nurses and golden cradles, and1 build palaces in which to protect their children from danger. They can only be required to use such care as their circumstances will admit of, which must be determined by the jury, from the facts in evidence. In this case the jury found for the plaintiff. The judgment is affirmed1 by a divided court.