| W. Va. | Dec 9, 1896
Lead Opinion
Two little boys, Henry C. Mayes, not quite five years old, and Luelza Mayes, about six years old, were killed by a
If Henry C. Mayes had been an adult, no recovery could be bad for his death, as he met his sad and early death on the railroad track, and the defense of contributory negligence would defeat recovery; but a child of the tender years of this .child is not chargeable with contributory negligence, for want of judgment, discretion, and presence of mind to know and avoid danger. Dicken v. Coal Co. (this term) 41 W. Va. 511" court="W. Va." date_filed="1895-12-07" href="https://app.midpage.ai/document/dicken-v-liverpool-salt--coal-co-6595297?utm_source=webapp" opinion_id="6595297">41 W. Va. 511 (23 S. E. 582); Westbrook v. Railroad Co. (Miss.) 6 South. 321; Bottoms v. Railroad Co. 114 N.C. 699" court="N.C." date_filed="1894-02-05" href="https://app.midpage.ai/document/bottoms-v-seaboard--roanoke-railroad-3675660?utm_source=webapp" opinion_id="3675660">114 N. C. 699 (19 S. E. 730); Summers v. Brewing Co. (Pa. Sup.) 22 A. 707" court="Pa." date_filed="1891-10-05" href="https://app.midpage.ai/document/summers-v-bergner-brewing-co-6240457?utm_source=webapp" opinion_id="6240457">22 Atl. 707. The law is clear that those in charge of a train must, by keeping up a reasonable lookout, use fairly ordinary care to discover animals and persons on the track, both to save them and passengers from injury. The public interest and necessity, not merely the company’s, demand that the company have sole possession of its track; but, as people live and move along the route, they do go upon the track; children, in their thoughtlessness and indiscretion, will go upon it; stock will wander upon it; and sheer necessity calls for such care as is exacted by this rule. Gunn v. Railroad Co. 36 W. Va. 165" court="W. Va." date_filed="1892-02-12" href="https://app.midpage.ai/document/gunn-v-ohio-river-rd-6594509?utm_source=webapp" opinion_id="6594509">36 W. Va. 165 (14 S. E. 465); 2 Wood, Ry. Law, § 320; opinions in Raines v. Railroad Co. 39 W. Va. 50" court="W. Va." date_filed="1894-03-21" href="https://app.midpage.ai/document/raines-v-chesapeake--o-ry-co-6594912?utm_source=webapp" opinion_id="6594912">39 W. Va. 50 (19 S. E. 565). Some courts hold that no duty lies on the company to look ahead for persons — on the track, as it has exclusive right to its track except at crossings, and they are trespassers; but we have, held that there must be a lookout even for live stock and ordinary care to prevent injury to it. Layne v. Railroad, Co. 35 W. Va. 438" court="W. Va." date_filed="1891-12-19" href="https://app.midpage.ai/document/layne-v-ohio-river-rd-6594459?utm_source=webapp" opinion_id="6594459">35 W. Va. 438 (14 S. E. 123) and cases. And, certainly, the same .care would be required so far as infants, deaf and other disabled persons are concerned, if not as to others. But our Court has settled this in cases above cited. If a ■child trespassing on a railroad track is struck by an en
A demurrer to evidence by the defendant admits all that can reasonably be inferred by a jury from the plaintiff’s evidence, and waives all the defendants contradictory evidence, or evidence the credit of which is impeached, and all inferences from the defendant’s evidence that do not necessarily flow from it. The evidence must be interpreted most favorably to the demurree, so that he may have all the benefit which a verdict in his favor by the jury would give him. In determining the facts inferable from the evidence, where there is grave doubt, those inferences or conclusions most favorable to the demurree will be adopted; and, unless there is a decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made in his favor. If the evidence is such that, if there were a verdict in favor of the demurree, the court ought not to set it aside, then, on the demurrer to the evidence, the court ought to give judgment against the de-murrant. Stolle v. Insurance Co., 10 W. Va. 546" court="W. Va." date_filed="1877-05-01" href="https://app.midpage.ai/document/stolle-v-ætna-fire--marine-insurance-6591721?utm_source=webapp" opinion_id="6591721">10 W. Va. 546; Garrett v. Ramsey, 26 W. Va. 345" court="W. Va." date_filed="1885-07-09" href="https://app.midpage.ai/document/garrett-v-ramsey-6593284?utm_source=webapp" opinion_id="6593284">26 W. Va. 345; Franklin v. Geho, 30 W. Va. 27" court="W. Va." date_filed="1887-06-25" href="https://app.midpage.ai/document/franklin-v-geho-6593670?utm_source=webapp" opinion_id="6593670">30 W. Va. 27 (3 S. E. 168); Fowler v. Railroad Co., 18 W. Va. 579" court="W. Va." date_filed="1881-11-19" href="https://app.midpage.ai/document/fowler-v-b--o-r-r-co-6592395?utm_source=webapp" opinion_id="6592395">18 W. Va. 579. Keeping in mind these principles, let us look at the evidence to see what inferences ought to be made from it.
The fireman had been engaged in coaling the engine, and,
But add other evidence: A witness says he passed over this trestle, and saw the children sitting upon it, and the train came, in perhaps, fifteen minutes, he thought, but was not certain as to the time. There they were sitting when he last saw them. There they were sitting when the locomotive struck them. May we not say, there they were yet sitting when it struck them? Had they ever moved? Counsel argues that we can not make this inference because the uncontradicted evidence of the engineer and fireman is that they were on the lookout, and did not see the children, and we can not draw inference against positive evidence. But the facts argue against this. The fireman had not looked for a fourth of a mile till he got within forty five or fifty feet, when he saw them. The engineer might have looked, but failed to see. The children might have been there nevertheless. He says the morning was foggy. If so, that would likely prevent his seeing; but discard that, as in conflict with several witnesses who say it was sunshiny and bright. The engineer says that the willows shaded the trestle. That might have prevented his seeing the children, and yet they be sitting there. But other evidence contradicts him as to the willows shading. Bear in mind that as yet we are confining ourselves to the question whether those children were on the trestle so as to be seen some time before the casualty, not upon the ques
But the defendant would still say that the evidence shows a careful lookout, and, if the children were there, they were not seen by this careful lookout, and that ordinary care is all that can be demanded, and, if it fails, the company is not responsible. They say the evidence showing this ordinary care to avoid calamity is uncontroverted, and we can not find in its face a want of ordinary care. We do not say they were seen and purposely hurt, but was there due care? Was there that care required by law? This is now our question, seeing that those children were upon the trestle, and the deadly train approached them. There was a curve in the road, and between the curve and the trestle a straight level track, with clear view for full half a mile; and the morning a clear bright morning of June, the time eight o’clock, the children (two of them) sitting ou a guard rail on a trestle, clearer to view, pei’haps, than if elsewhere on the track, and-the engine such as was capable of stopping the train in its own length, the fireman said, a witness for plaintiff, though the engineer, a witness for defendant, denied this. Now, it would be pretty lenient under these circumstances, so favorable for seeing and saving these children, and pretty dangerous as a rule, to say there was all due care. But here an important consideration enters into this question of the presence or absence of due care, and this that it is one of fact, proper for a jury; so, also, what was a fair inference from all the circumstances as to when the children were first on the trestle; so, also, the credibility of' witnesses as to seeing the children, and of watchfulness. A jury is to judge of the weight of evidence, and make inferences and deductions. Now, suppose there had been a verdict for the plaintiff. Could we set it aside? We do not think we could. Then the rule of decision upon a demurrer to evidence would require judgment upon it for the plaintiff. There is stronger reason for holding the com
The counsel of defendant seeks to relieve it from liability because of imputed negligence; that is, that the father and mother of these children allowed them to go about the track, and thus expose them to danger, and- as the father is sole distributee of his child, and will get the money recovered, the suit can not be maintained, as his negligence is imputed to the child. But we do not think that, if that doctrine be good law, a sufficient basis exists for its application. There was not that omission of ordinary care asper-sons of ordinary prudence deem adequate care with their children. O'Flaherty v. Railway Co., 100 Am. Dec. 343. The parents of these children seem to be poor, and there fore unable to employ a nurse to attend and guard their children — a fact bearing on the degree of care demandablé of them. Though living near the railroad, yet not so near (three hundred or four hundred yards) as to require such close constant watch. They warned their children against going on the rail road. They did know that they had on one or more occasions been on the track, and warned them against going there, and the father once whipped this little boy for doing so. The mother sent them that morning to turn the cows, up the road, and come back by the corn lot and garden — a different direction from the trestle, I understand. They could not peu or imprison their children from light and air and exercise and play. They could not always keep unfailing watch upon them. That degree of negligence is not shown which would warrant us in denying recovery on this ground. This renders it out of place to discuss the question of imputed negligence; that is, that, though no negligence could be charged to the child, yet, as the parent was negligent in exposing him to danger, that shall be imputed to the child, and made his negligence, and forbid recovery by merely the representative of the child. This doctrine began in the supreme court of New York in 1839, with Hartfield v. Roper, 21 Wend. 615" court="N.Y. Sup. Ct." date_filed="1839-10-15" href="https://app.midpage.ai/document/hartfield-v-roper-5515362?utm_source=webapp" opinion_id="5515362">21 Wend. 615, holding that where a child of tender years is in a highway unattended,
Judgment reversed, and judgment for plaintiff on the demurrer to evidence.
Rehearing
On Rehearing.
I have always regarded this case as one which lawyers call “a close case.” We therefore granted a rehearing. An able reargument has not changed the result expressed in the above opinion. I repeat what is said in that opinion, that imperious necessity demands that railroad com-
This brings up the question whether a court, upon a demurrer to evideuce, is bound infallibly to take for true a statement of a witness upon a given fact, only because no witness contradicts him in that statement. The rule is that, upon demurrer to evidence, the court rejects only the oral evidence of the demurrant that is contradicted or impeached. But what do you mean by contradicted or
In Green v. Judith, 5 Rand. 1, 19, 20, Judge Carr laid down principles solving more nearly the exact point, we have than any easel see, saying: “What part is he to be considered as waiving? First. All that contradicts that which is offered by the other party; that is, for instance, where a fact is proved circumstantially on one side to be so, and on the other side to be otherwise, this latter, being the demur-rant’s evidence, must be waived. * * * The demurrant can not say: ‘It is true, according to the evidence against me, I ought to admit so and so, as you demand, but my evidence shows I ought not; for, according to it, the fact is otherwise, and my witness is not impeached.’ He must waive his evidence, or the court must do it for him, as to this matter.” Apply these principles in this case. The nature of the case, its circumstances, show that the children could have been seen by a careful lookout in time to save them, and a jury could say, and we can say, there was no lookout; but because a witness says there was, and he is not specifically contradicted by another witness saying the former did not look ahead; but was talking or looking in another direction, wc must say he did look ahead, though the natural facts tell us he could have seen the children had he been looking. The rule of demurrer, to evidence says the demurrant waives that evidence; that
And here, upon cases cited in the above opinion, I repeat that upon a demurrer to evidence, in determining facts from evidence, where there is grave doubt, those inferences and conclusions most favorable to the demurree will be adopted; and, unless there is decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made in his favor; and if the evidence is such that, if there were a verdict in his favor, the court ought not to set it aside, then, oh such demurrer, the court ought to give judgment in his favor. Speaking for myself, I do not think that Acts 1891, c. 100 (Code 1891, c. 131, s. 9) relates to demurrer to evidence. It was not designed to revolutionize the law of demurrer to evidence by reversing the rule that the demurrant waives his oral evidence contradicted by evidence of his adversary; and my reasons for this opinion are (1) that, before that act, all evidence upon such demurrer was certified, and hence the statute was not needed to bring up evidence in that instance; and (2) because, by demurring, the demurrant takes the case from the jury, and deprives his adversary of the right to have it pass on the evidence contradicting his evidence, including the credibility of witnesses. To hold that he gives up no evidence enables demurrant, at will, to take the case from the jury, and have the court to give him full benefit of evidence that is contradicted, which a jury would have discredited or deemed of little effect. Did this act mean to make a jury out of a court as to conflicting evidence on a demurrer to evidence? I think not. Hence, I think, section 4 of syllabus in Mapel v. John, 42 W. Va. 30" court="W. Va." date_filed="1896-04-01" href="https://app.midpage.ai/document/mapel-v-john-6595389?utm_source=webapp" opinion_id="6595389">42 W. Va. 30 (24 S. E. 608) saying the demurrant waives no part of his evidence, is not tenable. Some may regard it peculiarly hard on
As to imputed negligence of the father: We do not regard the facts as sufficient to debar his recovery, and I shall add nothing as to that to what is said in the original opinion. The facts, therefore, do not squarely raise that question; and, where neither party can be affected one way or the other by its decision, we need not discuss the question. Stribling v. Coal Co., 31 W. Va. 82 (5 S. E. 321).