94 W. Va. 131 | W. Va. | 1923
This case is for-damages for the negligent killing of a cow owned by the plaintiff, by the defendant’s engine, on the 21st day of August, 1921. The ease was first instituted before a Justice of Mingo County, and a judgment rendered against the defendant for $200.00, and from this judgment an appeal was taken to the Circuit Court of Mingo County, in which court the case was tried by a jury which trial resulted in a verdict and judgment against the defendant for $200.00, to which judgment a writ of error and supersedeas was allowed upon the petition of the defendant.
The facts are that the cow:- was killed on a public crossing at “Chattaroy” station in said county, by defendant’s train known as the “Nangatuck” shifter, consisting of an engine and caboose running west .at about 20 or 25 miles an hour.
The point where the cow was killed is near the center of a long 4° curve. The cow approached the track from the north side, and was struck and killed by the engine just as she got upon the edge of the west bound track.
The proof, upon the part of the plaintiff, upon the question of negligence is substantially: that the cow was killed by the defendant’s engine as she was attempting to cross the west bound track, which she approached from the north side of same; that the view looking east from the point where
We think these facts, if taken alone, would justify the jury in finding the verdict for the plaintiff. The testimony, however, of the defendant’s witnesses, if uncontra-dieted, would clearly absolve the defendant from any negligence whatever.
From the physical facts, as revealed by the photographs filed in the case, there is a curve extending for a considerable distance east and west of the point where the cow was killed; that there are, at this point, two main line tracks and also a spur track which leads off of the east bound m!ain line track from a point east of the station, this spur track ends about opposite the station house at Ohattaroy, and apparently takes the same curvature as the main line tracks; and this curve, in railroad parlance, is against the engineer, and in favor of the fireman on a west bound engine. The engineer states that, on account of the curve in the track and by reason of the protruding boiler and machinery, he was unable to see the point where the cow was struck until the engine got within about three rail lengths (99 feet) of the point where -the cow was struck. The fireman stated that he was prevented from seeing that point, by reason of some box ears standing on the spur track, until the engine got in about four rail lengths (132 feet) from it, and as soon as he saw the cow, he yelled to the engineer ‘ * Cow on the track. ’ ’ The engineer testifies that as soon as the fireman yelled “Cow on the track” he, immediately, put on the brakes in the emergency full force, and did all he could to stop the train and prevent injury to the cow, and that it would not have
The contradictory statements made by the witnesses for the plaintinff ánd the defendant on the question of negligence necessarily, under the law laid down in numerous cases, makes this a question for the jury to pass upon and,, therefore, we niust say that the lower court" did not err in overruling the motion to strike out the plaintiff’s evidence; nor did it err in refusing to direct a verdict for the defendant.
The defendant assigns, as error, the giving of the plaintiff’s instruction No. 2, which follows:
“The court instructs the jury that if they believe from the evidence in this case that the plaintiff’s cow was approaching the railroad track of the defendant, and got upon the railroad track of the defendant, and, being there, was struck and killed by a passing train of cars in charge of the defendant’s servants, and if they believe from the evidence that the servants of the defendant in charge of the train could by the exercise of reasonable care and precaution after they saw the cow on the railroad track, or could have seen her by the use of reasonable and ordinary diligence, and have avoided killing the said cow, and they failed to use such reasonable care and precaution, the jury should find for the plaintiff. ’ ’
This instruction seems to embody the law applicable to this case and the court did not err in giving it to the jury.
The first error assigned by the defendant is that the court erred in sustaining the objection to the question propounded to the plaintiff, on cross-examination, as to what the animal had cost him when purchased; the question was:
‘‘Would you mind telling the jury what the cow cost when you bought her!”
This question was objected to by the plaintiff and the objection was sustained by the court. The materiality of the question is apparent. This witness was being cross-examined ; he had attempted to testify as to the market value
“Will you tell the jury what you gave for her and what Mr. Kidwell gave you for her?”
To this question the plaintiff objected and the objection was sustained by. the court, and the defendant excepted and by counsel avowed, “That if the witness were permitted to answer the foregoing question he would state that he paid $50.00 for the cow and sold her for $75.00.” This witness should have been permitted to answer this question. True his answer would not have been conclusive as to what the market value of the cow was at the time she was killed, yet the fact that this cow had been sold within five or six months from that time, once for $50.00 and once for $75.00, were facts that should have gone to the jury as circumstances tending to show the market value of the cow at the time of the accident.
Judge Ritz, in delivering the opinion of the court in Starcher v. Reese, 82 W. Va. 778, says:
“What is the-market value of a commodity? The answer is what it will bring in the market. What is the best evidence of market value ? The answer must be what it actually sells for."
The lower court erred iii refusing to let this evidence go to the jury.
For the foregoing reasons, the judgment will be reversed, the verdict set aside, and defendant awarded a new trial.
Reversed and remanded.