94 W. Va. 56 | W. Va. | 1923
This writ of error is to the judgment of the Circuit Court of Kanawha County, entered on the 1st day of June, 1922, which denied a writ of error to a judgment of the Intermediate Court of Kanawha County rendered on the 3rd day of Feb. 1922.
The suit was originally brought before a Justice of the Peace of said county, who rendered a judgment against the
The evidence, as to the killing of the cow, shows that she' was killed by the engine of a West Bound Express Train, which consisted of an engine and several baggage ears, running on the west bound track at a speed of about 25 miles per hour; that, at the point where the cow was killed, there are two tracks about 8½ feet apart, these tracks being desig- • hated as the “East Bound” and the “West Bound” tracks.. When first observed by the plaintiff’s witness, Adkins, and by the engineer of the defendant, the cow was standing on the east bound track in the shade of a coal tipple.
Witness Adkins, who was the only eye witness to the accident, introduced by the plaintiff testifies in answer to this quéstion, asked by plaintiff’s counsel: “What did the cow do when the train approached pretty close?” says, “She just turned and went across one track on the ditch, across between the two tracks and up in front of the train. He hit her just about along, by the fore shoulders — , ’ ’ showing that the cow was attempting to cross the west bound track and was struck by the engine just as she got on the track with her front feet.
The plaintiff states that the view was unobstructed from the point where the cow was struck by the engine, for four hundred yards. Adkins places the distance at one hundred and fifty yards, and no witnesses except defendant’s engineer, states the distance that the view was unobstructed from the point where the cow was standing under the shade of the coal tipple. It was also shown that, at the point where the cow was standing on the east bound track, there is a wall, or bank, and that it would be difficult for the cow to' get away from the point' where she was standing without going up or down the east. bound' track, or across the west bound
The plaintiff has failed to show that any duty devolving on the defendant has been negligently performed, or omitted, in reference to the killing of the cow sued for herein.
The hog, sued for, first got on the track when the train was 200 yards from it. It was near a crossing and was struck by an east bound freight train, consisting of about 20 or 25 cars, running about 40 miles an hour; no whistle was blown and the train did not stop. This is substantially, what, the plaintiff proved. There is no evidence upon the part of the plaintiff that the train could have been stopped by the use of ordinary care, and the accident prevented. On the contrary, it is shown by the defendant that a freight train of that description running at the rate of 35 or 40 miles an hour, when properly equipped, could not be stopped under a quarter of a mile; this testimony is uncontradicted. Then can we say that there was negligence upon the part of the defendant in killing this hog? We think not.
The basis of this action is negligence, and the question is: Did the Railway Company negligently kill this stock? Negli
“Negligence generally is a mixed question of law and fact, and when evidence is conflicting in relation to the existence of such facts as would show negligence, if undisputed; or when facts admitted to be true, or clearly proven and not. denied, are such that reasonable men might draw' different conclusions from them, the question of negligence is for the jury.” Ewing v. Lanark Fuel Co., 65 W. Va., 726; Washington v. Railway Co., 17 W. Va. 190; Raines v. Railway Co., 39 W. Va., 50.
The testimony is not materially conflicting. No witness contradicts the engineer. Taking all the facts shown in this case by both the plaintiff and the defendant, we must conclude that the plaintiff has failed to make a case and defendant’s instruction No. 1, directing a verdict for it should have been given.
The judgment of the lower court is, therefore, reversed, the verdict of the jury set aside, and the case remanded.
Reversed and remanded.