Bower v. Virginian Railway Co.

BobiNson, Judge: Did the court err in sustaining defendant’s demurrer to the-evidence ? In other words, could the jury have found from the-evidence that defendant’s servants in charge of a heavy freight train were negligent in running the train on plaintiff’s horse so-that the animal wa's lost to plaintiff? We are of opinion that the court’s action is right. None of plaintiff’s witnesses saw the train run on the horse. They mainly speak from what they observed as to the horses tracks on the road-bed of the railroad. One.of them was riding in the caboose of the train, but his testimony by no means establishes negligence. The mere absence of a continuous blowing of the whistle, or the failure to stop the train with a jolt, do not, under the circumstances presented, make negligence. Plaintiffs witnesses do not show that the train could have been stopped in time to prevent injury. On the other hand, the sole witness for defendant, the engineer, testifies to decisive facts wholly uncontradicted in the ease — that he used every reasonable precaution to protect the horse from injury, that he made every effort to stop the train as soon as the- horse darted [738] to the roadbed from where is was grazing fifty feet away, and that the train eonld not have been stopped in a shorter distance than that in which it was stopped. All that plaintiff’s witnesses say may be true, and still all that the engineer says as to the exercise of due care on his part and as to his inability to stop in a shorter distance may be true. The testimony simply showing the distance the horse had run on the roadbed, as determined from the tracks of the animal, does not establish that the train could have been stopped in that distance. The jury could not merely infer that such distance was that in which the brakes on a heavy freight train going down grade could be put on with proper regard for the safety of the train and the train be brought to a standstill. If the engineer’s uncontradicted testimony as to facts decisive in the ease were false, plaintiff should have produced contradiction thereof, ■■otherwise the engineer’s testimony in such particular can not be disregarded. Quite clearly, if the case had gone to the jury and ■a verdict for plaintiff had been found, it would have been the duty of the court, on motion, to set the same aside. Therefore, defendant’s demurrer was well taken. Dempsey v. Norfolk & Western Ry. Co., 69 W. Va. 271. The judgment will be affirmed. Affirmed.