75 W. Va. 797 | W. Va. | 1915
Plaintiff obtained a verdict and judgment for two thousand dollars, for personal injuries due to the alleged negligence of defendant in permitting its railway track, on Virginia street, in the City of Charleston, at the point where the injuries were sustained, to become so charged with electricity as to be dangerous to persons and animals travelling thereon. Plaintiff alleged that while riding over said street on horseback
Defendant company seeks reversal here of that judgment, ■and the errors assigned and relied on are: First, the overruling of its motion, at the conclusion thereof to exclude plaintiff’s evidence and direct a verdict in its favor; second, the refusal of the court, on the conclusion of the evidence on both sides, to instruct the jury peremptorily to return a verdict for defendant; third, the denial of its motion, after verdict, to set the same aside, and award it a new trial, for the reasons assigned, that the same was contrary to the law and the evidence.
Many of our decisions say that a defendant’s motion to exclude the evidence of plaintiff is waived, if, after the adverse action of the court thereon, defendant proceeds with the trial and introduces to the jury his evidence on the issues joined. So we need not here separately consider this point. The other points of error manifestly present but one question, namely, is the verdict sustained by a fair preponderance of the evidence ? If it is, of course the judgment must be affirmed.
The main issues fought out before the jury were, whether the fall of the horse was due to the alleged negligence of defendant, or to stumbling of the horse by striking his foot on the paved street or the steel rail of defendant’s track, unaffected by any supposed negligence of defendant, and whether in fact the rail was charged with electricity in a way to have caused the fall of the horse. That the horse did fall upon the track, injuring plaintiff, as charged, is conceded; and the testimony of the plaintiff, and several other witnesses, disinterested, who were present and observed the fall of the horse and the character thereof, and the electrical manifestation on the track at the instant of the fall, if not contrary to the physical facts, and known and proven characteristics of electric currents over the wires, motors and tracks employed by defendant in the operation of its railway at the time of the injuries, certainly justified the verdict of the jury on the
As to whether it was possible for the electricity in the rails, employed by defendant for motive power as it was, to escape from the rail and cause the injury as alleged, two expert witnesses, one for plaintiff and one for defendant, the defendant’s witness being its track foreman, concur in saying that if the bond between the rails was broken or defective, a horse or man coming in contact with the rail, as claimed by plaintiff, would receive a shock, and would be liable to get burned, particularly if the contact was between the point where the bond was broken and the power house. And defendant’s track foreman says he has seen horses fall on the track from such shocks when there were bad bonds. Another expert witness for defendant, an electrical engineer, having a college degree as such, and manifesting a great deal of technical learning, and with considerable experience, particularly in the practical construction of electrical machinery, and in
Strange it is that no tests were made at the time of the injury or afterwards to ascertain whether the bonds on the rails were broken or defective; or whether the rail which was supposed to have done the injury was in fact charged with electricity as claimed. Plaintiff’s counsel excuse him by saying that the rails were mostly under ground, or flush with the street pavement, and buried in brick and cement, and entirely under the control of defendant company, and, that it was the duty of defendant, denying defective bonding of the rails, to have made all proper tests, and to overcome by positive evidence the presumption of negligence, arising from the fact of the accident and attendant facts and circumstances tending to show negligence. We think there is much force in this position of counsel, and that the general rule that where evidence is in the possession of one party and he has the means of producing it, and fails to do so, the conclusion may be drawn that if produced the evidence would be against him.
True we have no positive evidence that bonds on the rails at the point of the injury were broken or defective; and whether the dangerous condition of the rail causing the injury was due to defective bonding or to defects in other appliances employed by defendant does not clearly appear by any affirmative evidence of the witnesses. The question then is, do the facts proven and above briefly detailed, by a fair preponderance, establish the fact of negligence, justifying the verdict? We have concluded that they do. We think the jury could reasonably conclude that the rail struck by plaintiff and his horse was overloaded with electricity, and that it was escaping as described by the witnesses. Besides the injury to plaintiff personally, the evidence tends to show the horse’s hoof was also burned or injured by the escaping
Further research has rewarded us in finding three decisions of other courts, not cited by counsel, where this rule was applied on concrete cases almost, if not quite, on all fours with the case at bar, and where want of evidence showing negligence was relied on. We refer to Trenton Passenger Railway Co. v. Cooper, 60 N. J. L. 219, 37 Atl. 730, 38 L. R. A. 637, 3 Am. Neg. Rep. 55; Clarke v. Nassau Electric Ry. Co., 75 N. Y. St. Rep. 539, 6 Am. Electrical Cases, 234, and Wood v. Wilmington City Railway Co., (Del. 1905) 64 Atl. 246. All these cases are cited with approval as the basis for his text, in 2 Joyce on Electric Law, (2nd ed.) section 602. The language of that text is: “Where a horse being driven upon the public street is injured by contact with the rails of an electric street railway, such fact is presumptive proof of negligence by the company in the operation of its road.” The one point of the syllabus in Clarke v. Nassau Electric By. Co., supra, is: “The facts that a horse stepped on the rail of a trolley road and immediately fell to the ground in a dying condition, also that its driver, touching the hames, received a severe shock, held, to be prima facie proof of defective insulation and so of negligence on the part of the railway company.” And pertinent to the evidence of defendant’s expert witness in this case, the court said of like evidence in that ease: “It is true, the expert testimony indicated that such an accident could not occur unless,
But it is suggested that a proper case is presented here for the application of the rule that where the injury sustained may have resulted from one of two causes, equally plausible, and for one of which defendant is liable and for the other not, the burden is on the plaintiff to show that the injuries resulted from the negligence of the defendant, and were not the result of the other agency for which defendant was not responsible. . If any force be given to the positive evidence of the witnesses as to the manner of the horse’s fall and the electrical phenomena occurring on the rail at that instant, we cannot say that the theory of the defendant that the horse stumbled naturally and not from anything due to defendant’s
Another point suggested is that if the track was defective as charged, and as the evidence of plaintiff tends to prove, resulting in the injuries complained of, there was no evidence showing knowledge thereof on the part of defendant and imputing negligence. The evidence shows or tends to show that the track in question had been laid for several years, and that there had been no real tests made of the condition of the rails at the point of the injuries since they were laid; that instruments are made, and methods are well known for making such tests, but had not been used or employed by defendant company in testing the rails assumed to have done the injury in this case.
For the foregoing reasons we are of opinion to affirm the judgment.
Affirmed.