127 Va. 651 | Va. | 1920
after making- the foregoing statement, delivered the following opinion of the court:
There are numerous assignments of error, but in the view we take of the case it is necessary for us to consider but one question raised thereby, and that is as follows:
1. Is there any evidence in the record to support the verdict of the jury in finding that the railway company was guilty of any negligence which was the cause of the fall of the building into the stream, which resulted in the death of the deceased by drowning?
We are of the opinion that the question must be answered in the negative.
In the first place, if we infer from the circumstantial evidence (consisting of the existence of the freshet and its ac
If then there was such a change of the current, there is nothing from-which any negligence of the railway company can be inferred, unless the evidence shows that the railway company could have reasonably anticipated that the current would so change. Now on the latter question,- the evidence shows that the normal current of the stream, prior to the freshet at the time of the accident, was toward the opposite bank from that on which the building was located. And, from the fact that the corner posts were not carried away ' during the four years they had stood as aforesaid, it seems reasonable to conclude that the current of the stream in the freshets during that period was in that direction and carried the logs and other debris and the main force of the water in such direction. If then the current changed, it must have changed during the progress of the last freshet. If so, to what cause was the change due? The evidence is silent as to this matter also. If there was such a change, and if it was due to any cause for which the railway company was responsible, or of which it had such foreknowledge, actual or constructive, as rendered it negligent in the premises, the evidence fails to disclose it. And under the circumstances, in the absence of such proof, we must assume that no such proof could be furnished.
In no aspect of it, in the- instant case, do we find any evidence in the record to show that the railway company was guilty of any negligence which was the cause of the fall of the building which resulted in the death of the deceased.
The verdict of the jury and judgment under review will therefore be set aside and annulled; and, as it seems to us' that the facts before us are such as to enable us to attain the ends of justice by final judgment upon the merits, the case will be dismissed.
Reversed; and, dismissed.