Torbert v. Atlantic Coast Line Railroad

Sims, J., after making the foregoing statement, delivered the following opinion of the court: 1. On the trial of the case, on the examination in chief of the plaintiff as a witness in his own behalf, the plaintiff was asked the following question: “Mr. Torbert, state whether or not engines of the defendant * * * drawing freight trains southward * * * throw sparks and coals as they pass the point at which your property is located.” On objection to the question the jury were withdrawn. In the absence of the jury the witness stated that his answer to the question would be, “They do.” While the jury were absent, the witness was further asked: “* * * if all the engines drawing freight trains going * * * (southward) * * * labor heavily at that point?” The witness answered: “They do.” — 689 — Thereupon the court refused to allow the witness to answer the question first above quoted. This ruling on the part of the trial court was error. N. & W. Ry. Co. v. Spates, ante, page 69, 94 S. E. 195. That this error was prejudicial to the plaintiff is manifest when we consider that, in view of his other evidence in the case, the jury were entitled to consider the fact that sparks or coals were thrown by the engine, under the decisions of this court. Atlantic, etc., R. Co. v. Watkins, 104 Va. 154, 51 S. E. 172; C. & O. Ry. Co. v. May, 120 Va. 790, 92 S. E. 801; C. & O. Ry. Co. v. Ware, ante, page 246, 95 S. E, 183. It is true that in the cases last cited there was a wind blowing from the defendant’s railroad towards the place' of origin of the fire at the time the fire originated; and in the instant case the testimony for the plaintiff was that there was no wind at the time of the origin of the fire. But the undisputed fact in the. instant case is, that the train of the defendant, from which plaintiff’s evidence tended to show the fire originated, passed along by the shed between the lines of box cars standing on each side of the main line track, which of itself, according to known physical laws, in the resistance given by such lines of box cars to the air displaced by the defendant’s moving train, might have caused ample disturbance of the air to have carried sparks or coals, if thrown out by the engine of such train, the short distance of twenty-five feet from the engine to the debris on the side of the shed, where the.fire originated according to the testimony for the plaintiff. Therefore, whether or not such engine in fact threw sparks and coals as it passed said locality was a material fact in the instant case, upon the plaintiff’s theory of the origin of the fire. Hence, said error in excluding the circumstantial evidence, which would have been- obtained by the admission of the evidence which was excluded, was plainly harmful error to the plaintiff and therefore reversible error. — 690 — There was' no direct evidence in the case to the effect that the engine in question threw sparks or "coals in the locality of the fire. The excluded evidence aforesaid was itself, it is true, only circumstantial evidence on the question of fact whether sparks and coals were so thrown, but it was nearer in degree of proof to that inference of fact which the plaintiff sought to have the jury draw as to the sparks and coals being in fact thrown', than the evidence which the plaintiff had in the record in the absence of such excluded testimony. That is to say, without such excluded testimony, the plaintiff was compelled to rely solely on the other testimony of his witnesses, contradicted by the testimony of witnesses for the defendant, that there was such a grade in the main line track of defendant which the engine of defendant drawing the train in question had to pull, that this pulling on such up-grade caused such engine to throw sparks and coals. By said exclusion of testimony and by the giving of such instruction No. 1 for defendant, the plaintiff was prevented from relying upon a fact which was a material link in his chain of evidence. 2. Instruction No. 1, given as asked by defendant, is upon the" subject of the weig-ht and the effect of the evidence. An instruction on that subject must be carefully .drawn so as not to invade the province of the jury under our procedure. Under that procedure they are the sole judges of the credibility of witnesses and of the weight to be given to the .evidence in a case. That part of the instruction which it is necessary for us to consider in the instant case is as follows: sí * a * ^or can jUIy presume from the happening of the fire that it was caused by the defendant * * * In other words, it is incumbent upon the plaintiff to show how the fire occurred and the plaintiff cannot leave to the jury the determination of the question by conjecture, guess or random judgment or upon mere supposition.” — 691 — This was in effect an instruction to the jury that they could not, in the instant case, presume (i. e., could not draw the inference of fact) from the happening of the fire, under the circumstances shown by the evidence for the plaintiff, that it was caused by the defendant. As we have above noted, under former decisions of this court, that was precisely such an inference of fact as the jury might have been warranted in drawing in the instant case, in view of the undisputed facts and of the evidence for the plaintiff. The fundamental error in the instruction is that an ordinary reader or person would be apt to construe it to mean that a jury cannot draw .an inference of fact from circumstantial evidence; that such an inference is a presumption based upon a presumption, which cannot serve as an intermediate fact from which (along with other circumstantial evidence) the jury may draw another inference of fact. The error of such position is pointed out by this court in the case of C. & O. Ry. Co. v. Ware, supra. The result of the instruction under consideration in the instant case (on. that feature of it which concerned what, if any, inference the jury might draw with respect to the vital question of fact of whether the engine of the defendant, pointed to by the plaintiff’s evidence as the cause of the fire, did or did not throw sparks and coals as it passed the plaintiff’s property), was to indicate to the jury that they could not draw such inference of fact, as to sparks or coals, from the circumstantial evidence which had been admitted in the case—namely, that the jury could not draw such an inference of fact from the circumstantial evidence that such engine was pulling a train on the up-grade, shown by the evidence for plaintiff. As indicated in the Spates Case, supra, the giving of such an instruction as that under consideration, is in its nature misleading to a jury, where the case is one in which there is evidence of sufficient probative value to justify submit — 692 — ting the issue to the jury. In such a case the plaintiff is not left to rely on “conjecture, guess or random judgment, or upon mere supposition.” Compare C. & O. Ry. Co. v. Catlett, ante, page 232, 94 S. E. 934. It was error, therefore, for the trial court to give said instruction, and such error plainly appears from the record in the instant case to have been prejudicial to the plaintiff, and hence the giving of it was reversible error. There are other assignments of error relating to the exclusion of testimony and the refusal of an instruction offered by plaintiff, all bearing on the question of the existence of negligence on the part of the defendant as the cause of the setting out of the fire; but as there was no evidence tending to show any other cause for the fire attributable to the defendant than the sparks or coals thrown from one of its engines, and as the sole instruction given at the request of the plaintiff submitted the case to the jury on the question of whether the fire was caused by sparks or coals as aforesaid (which amounted to submitting the case to the jury under the Featherston act, under which the negligence of the defendant is not in issue), it is deemed unnecessary to consider such assignments of error. For the foregoing reason, the judgment complained of must be set aside and annulled, and a new trial will be. granted to the plaintiff, to be had, if he is so advised, not in conflict with the views expressed in this opinion. Reversed.