Southern Railway Co. v. Wiley

Keith, P., delivered the opinion of the court. This is an action brought to recover damages for an injury by the Southern Railway Company to Ralph Wiley, an infant about two and a half years old. The facts are as follows: Train No. 14 on the Richmond [188] and Danville division of the Southern Railway, moving north from Danville to Richmond, reached Scottsburg, a station on the road, at 5:56 o’clock P. M. on the evening of January 9, 1909, on schedule time. The sun set on that day at nine minutes after 5 o’clock, and there is some evidence tending to show that the evening- was cloudy, misty and dark. The train stopped at Scottsburg for about a minute or a minute and a half to discharge and take on passengers. It then proceeded on its way, and, shortly after it had passed, Ralph Wiley was found on or near the track 320 feet north of the station and 240 feet north of the point where the engine had stopped, with his left arm crushed just at the elbow. No one was with him except his little sister, about four years of age, who was found a little way off on the east side of the railway among some railroad cross-ties. These children lived in a cabin near the right of way of the railroad on the west side, nearly opposite the point where the injury occurred. Vaughan, a witness for the plaintiff, testified that on the evening of the accident he was a passenger on the train, and got off at Scottsburg on the right-hand side next to the passenger station; that he walked to the corner of the station and was standing in a path at the end of the station building about six feet from the train, when he saw Ralph Wiley just on the outside of the right-hand rail of the main line; that the child was down with his hand on the rail and appeared to be trying to get over it; that he was down on his hands and knees, and he saw another child standing eight or ten feet from him to the right; that the engine was then standing still; that he made no outcry, and did not call the attention of the engineer to the position of the child, but stood and watched to see if the engineer would stop his train; and that he looked until the train was nearly upon him, and then turned and went home. The engineer swore that he did not see the child; that [189] he was looking ahead all the time after he left the station at Scottsburg; and that he saw neither of the children. It is shown that Scottsburg is a village of from 250 to 300 inhabitants, and that they and the residents of the county in the neighborhood use the railway tracks as a walkway, but that the tracks are very little used after dark. When the evidence was concluded, the plaintiff and defendant asked for a number of instructions. The court granted the instructions asked for by the plaintiff, numbered 1, 2 and 3, and to this action of the court the defendant excepted. The defendant asked for six instructions, marked “A,” “B ” “C,” “D,” “E,” and “F”; but the court refused to grant “C” and “D,” and the defendant again excepted. There was a verdict and judgment in favor of the plaintiff for $3,000, and the case is before us upon a writ of error. We think instructions Nos. 1 and 2 propound familiar principles of law, and do not require discussion. Instruction “C” asked for by plaintiff in error leaves wholly out of view the fact that the tracks of the Southern Railway Company at the point of the accident had long been used as a passway by the inhabitants of the village and country around, with the knowledge and acquiescence of the railway company. That these facts imposed upon the company the duty of keeping a reasonable lookout for persons upon the tracks, has been so frequently decided that it may be deemed the established law of this State. The same objection applies to instruction “D,” and both were properly refused by the circuit court. The only point of difficulty arises upon instruction No. 3, given at the instance of the defendant in error. It proceeds upon the theory that the track at the point of the accident had not been used by the people of that vicinity as a walk and passway with the knowledge of the defend [190] ant, and then instructs the jury that if they believe from the evidence that the engineer of the defendant company in charge of its engine at the time of the injury complained of, discovered the infant plaintiff on the track in front of the engine in time to have stopped the engine and avoided the injury, but that after such discovery he negligently and carelessly failed to take any precaution to stop the engine but ran the same over him, then the defendant is liable and the jury must find for the plaintiff. It is admitted that as a proposition of law this instruction is correct; but the contention of the plaintiff in error is that there is no evidence to support it. The testimony of Vaughan is that he plainly saw the child, although he was nearly one hundred feet further from the child than the engineer; that the engineer was looking in the direction of the child, a fact which the engineer himself admits in his testimony; and it is further shown that at the moment the engineer was not engaged in the performance of any other duty; that the train, at the time it struck the child, was moving so slowly that it could have been stopped within the space of ten. feet; and the sole question is whether upon these facts a jury had the right to infer, not that the engineer should have seen the child, but that he did in point of fact see it in time to have avoided- the accident. There is no suggestion that the eyesight of the engineer was not as good as that of the average man — the presumption, indeed, is that it was better than the average, for engineers are inspected and tested with respect to their vision. 'He was under no disadvantage of position; on the contrary, the advantage of position was with him, as he was the nearer of the two to the child. In the case of N. & W. Ry. Co. v. Crowe’s Admx., 110 Va. 798, 67 S. E. 518, an analogous state of facts appears. In that case a witness testified that neither he [191] nor the deceased saw or heard the approach of a train, although neither sight nor sound were obstructed, and this court said, that to believe his statement “would under the circumstances narrated be to accept as true that which in the nature of things could not be true.” A number of cases are there reviewed, and the lav/ as stated in Moore on Facts, at section 160, is approved, which says: “Courts are not so deaf to the voice of nature or so blind to the laws of physics that every utterance of a witness in derogation of these laws will be treated as testimony of probative value because of its utterance. A court will treat that as unsaid by a witness which in the very nature of things could not be as said.” In the case of Artz v. Railroad Co., 34 Ia. 154, cited with approval in N. & W. Ry. Co. v. Crowe’s Admx., supra, the court, after a full discussion of this subject, concludes that “an object and power of sight being conceded, the one may not negative the other.” We therefore conclude that the jury, which heard and saw the witnesses and is the judge of the credit to be accorded to the testimony, may with propriety have found, upon a review of all of the evidence before it, that the engineer in fact discovered the position of the child in time to have avoided the injury inflicted upon him. We are, therefore, of opinion that the judgment should be affirmed. Affirmed.