126 Va. 97 | Va. | 1919
Lead Opinion
after making the foregoing statement, delivered the following opinion of the court:
2. On the question of whether such doctrine is or is not applicable to the case, we have the following to consider.
This statement of the law is too well settled to admit of controversy, and it is not controverted by argument before us in the case.
The evidence for the plaintiff, and indeed the testimony of the engineman himself would have warranted the jury in finding that after seeing the deceased and Estep on the track a fourth of a mile away the engineman did not look
According to the testimony in the record, which is mentioned in the statement preceding this opinion, Estep is the only witness who saw the deceased when he was at a distance from the approaching engine of fifty to seventy-five feet, and this was the next time that the deceased was seen by any one after he was observed by the engineman about 400 yards or 1,200 feet away. There is no evidence in the record that, when the engineman saw the deceased 1,200 feet away, the attitude of the deceased was that of one unconscious of his peril. But the situation was different when the deceased was next seen by Estep. At this time the position and condition of the deceased was unquestionably one of obvious unconsciousness of peril. It so impressed Estep the moment he saw deceased, and it cannot be doubted it would have so impressed the engineman could the latter have seen and had he seen the deceased at that time. Moreover, by reference to the diagram above and the testimony above mentioned, it will be observed that the deceased was then on the railroad track walking towards the approaching engine, with his face turned away from the engine, looking intently and continuously back at Minor, who was at work putting a truss-rod in one corner of the flat car,
It is true that it seems most probable from the evidence that the view of the engineman of the deceased at the time just mentioned was obstructed by the tender of the engine, so that the engineman could not then have seen the deceased had he looked along the track. And it is also true that the engine was then too close to the deceased for it to have been possible for it to have been stopped in time to have avoided
On the last-stated question the evidence is wholly circumstantial. The direct evidence, however, shows that the' same cause, namely, the work on the fiat car, which occasioned the attitude of the deceased, aforesaid, at the time he was seen by the eye-witness, Estep, had previously existed. And the further fact is shown by direct evidence that the deceased took as long to go about sixty feet or twenty yards as Estep did to go about 100 feet or thirty-three and one-third yards, and hence 1 hat the deceased was delayed for a time, thus measured as he proceeded along the main-line track by some cause or causes. Even in a criminal case the evidence to establish a fact need exclude only every reasonable doubt arising from a consideration of the evidence. Every other possible hypothesis does not have to be excluded before a fact in issue can be taken as proved, but only such other hypotheses as are consistent with the evidence in the case. It is possible, of course, that some other cause may have contributed to the delay of the deceased, but the evidence in the case points only to one cause, namely, the deceased having become absorbed in observing the work on the flat car, aforesaid. And comparing the progress of the deceased with that of the train and of Estep, the direct evidence discloses what was the length of that delay, namely, only for about twenty-five, thirty-seven and one-half or fifty seconds, dependent upon whether the speed
It is claimed for the defendant, however, that it is incredible and not reasonable to be believed that the deceased had continued for such a preceding time to walk in the position in which Estep saw him, as aforesaid. That the deceased must have looked in the direction in which he was walking at frequent intervals and so must have seen the approaching engine at the time or before he was within the radius
It is contended for defendant that there is no evidence that the deceased had been looking away from the track until he reached the point where Estep saw him, within fifty or seventy-five feet of the engine. This position ignores the testimony of Minor that the deceased was looking at him at work, as aforesaid, and it ignores the location of the flat car and of the position on it of the work that Minor was doing, which attracted the attention of the deceased, and that the deceased must have passed the point opposite
The circumstance that the deceased became confused when he at length discovered the approach of the engine when it was within eight or nine feet of him, and that he then, in his fright, made the error of not springing from the track next to the flat car, cannot relieve the defendant from liability for its negligence, aforesaid, for two reasons: first, because the evidence does not show that if the deceased had continued his first movement to the west he would have escaped, and, secondly, because that conduct of the deceased was but a result reasonably to be expected of one in his perilous position at the time when the negligence of the defendant occurred, from the result of all of which he would have been saved by the discharge of its duty, aforesaid, by the defendant under the last clear chance doctrine.
It should be further observed that nothing which is said above leads to the conclusion, as is contended for defendant would be the result of such a holding, that a railroad company in the operation of its trains needs to slow down their lawful speed or that the operation of its trains will be in any manner delayed, except where the perilous position and condition of a licensee on the track exists and is or would be obvious to the engineman or fireman in the exercise of ordinary care in the performance of their duties, among which is the duty of keeping the reasonable lookout aforesaid. Then, as is said in So. Ry. Co. v. Bailey, supra (110 Va. 833, 67 S. E. 365, 27 L. R. A. (N. S.) 379), “it becomes the duty of those in charge of the train to do all they can consistent with their higher duty to others, to save him” (the licensee) “from the consequences of his own act,” but not until then.
Affirmed.
Rehearing
UPON PETITION FOR REHEARING.
We are asked to reopen this case upon certain questions of fact, and certain portions of certain testimony is specifically called to our attention, and certain inferences of fact are sought to be drawn therefrom; but as none of such testimony was overlooked in reaching the conclusions announced in the original opinion, the situation merely being that there is direct evidence for the plaintiff in the record in conflict with such inferences, so that they could not be drawn by us on our consideration of the case upon the demurrer to the evidence which was interposed by the defendant, the prayer of the petition must be denied.
For example, upon the chief question of fact put in issue by the position of the petition, that “Minor was not south, but eighteen feet west of Ledford at the time of the accident and Ledford was then looking sideways and not backward over his shoulder,” the following extracts are quoted in the petition from the testimony of Minor, a witness for the plaintiff:
“Q. Tell the jury how that occurred as you saw it?
“A. Well, I was framing a flat car, that is, standard-gauge car, and I was down in the comer of this car putting in a truss-rod. I had not heard any train or anything of the kind until I heard some one holler. When I raised up, the train was in something like eight or nine feet of Led-ford, and he was going up meeting the train about the middle of the track, and it struck him.
*117 “Q. How close were you to the track and to this train when it struck Ledford?
“A. 1 believe, the best I remember, it was eighteen feet; I measured it once, and I believe it was eighteen feet. * * * “Q. Tell when you first observed, if at all, the engine slacking up or slowing up.
“A. I could not tell from where I was working there at the sand-house at the end of the car sitting on a temporary track by the side of the main line. When it struck Ledford it was only about eight feet until it knocked him out of my sight behind the sand-house.”
Minor does here state, in substance, that he was eighteen feet from the track and the train when it struck Ledford; and also that when the train struck Ledford “it was only about eight feet until it knocked him out of my sight behind the sand-house.” And if this testimony stood alone, the reasonable inference to be drawn therefrom would be that Minor testified that Ledford was struck by the train at a point on the track west of and at right angles from Minor. But this testimony does not stand alone. Minor was there testifying without the map or diagram made by Estep being before him, and his reference to the distance of “eight feet” that Ledford was knocked so as to pass out of his sight was but an estimate, and an estimate not in accord with other testimony in the case for the plaintiff. Subsequently, on cross examination (p. 21, record), there are the following questions and answers of Minor.:
“Q. Mr. Minor,. I wish you would step up to the jury and show them just where you were working, on this little map, please sir. This is supposed to be the main track and the engine was backing down this way, and this is supposed to be the spot where Mr. Ledford was struck; that is the sand-house, and this is the blacksmith shop. Where were you working?
*118 “A. I was betwixt the shop- and. the sand-house building a car.
“Q. Eighteen feet from the-point where he was hit?
“A. Yes.”
Now, the map referred to in the testimony of Minor just quoted was the map or diagram made by Estep which was in evidence for the plaintiff, and is shown in the,statement preceding the original opinion which we have handed down in this case. On that diagram itself the point was marked at which Ledford was when struck by the train, as testified to by Estep, by the very fact of his making the diagram and marking such point thereon and putting the map in evidence. On the same diagram itself was also marked the point at which Minor then was, as testified to by Estep by the very fact of 'his making the diagram and marking such point also thereon. These points, as marked on the map, furnished direct testimony for the plaintiff and an ocular demonstration that such direct testimony was that Ledford was some distance north of Minor at the time the train struck Ledford, -and that the former was not then at right angles to the latter; and it is apparent from the respective positions of the two as shown on such diagram that Minor was south of Ledford at the time of the accident, and that Ledford, to have looked, as he walked, at Minor must 'have been looking, not merely sideways (at right angles), but backward. And in Minor’s statement last quoted we have his direct testimony that he (Minor) was eighteen feet from the point where Ledford was hit, given while referring to the aforesaid map before him- on which the point where Ledford was hit was marked, as aforesaid. Again, the position of Minor,, as marked on said diagram, does not indicáte that he was as far as eighteen feet away from a point on the main-line track to the west and at right angles to him. Considering such evidence on demurrer
Of the other matters of fact discussed in the petition, we deem it sufficient to say that on a careful review of them we find that there is .ample testimony for the plaintiff in the record to sustain the conclusions we have reached and expressed in the original opinion.
Rehearing denied.