83 Va. 312 | Va. | 1887
delivered the opinion of the court.
This action is, under chapter 145 of the Code, for the hilling of the decedent of the plaintiff in error. The plaintiff offered evidence showing the hilling, the cause and manner of it, etc.; whereupon the defendant’s counsel
The evidence was that the decedent was killed by the railroad train of the defendant company. That he was killed at a public crossing, while driving along in the usual way in his carriage, going to his dwelling, which was close by; the said crossing being situated on his farm; that no regular train was due at that point at or about that time. That the train was an irregular train, composed of an engine and tender and one car,—an officer’s car. That, being thus irregular, and running on no established schedule as to time, it was speeding over the track at a most ■extraordinary rate,—fifty or sixty miles an hour by estimate,—twice as fast as any regular train usually ran. Flying along at this rate, it observed no precautions at or near this crossing,—neither whistled nor rung the bell, as was ■customary—but whistled, when three-quarters of a mile off, at another whistle-post in a cut; and, although there was a whistle-post for Roberts’ crossing (the place of the accident), the train ran by it without a signal. That the ■carriage in which the deceased was riding was broken into small pieces, both horses killed outright, as was the deceased, and the train ran on for two hundred and fifty or three hundred yards before it was stopped. This evidence was excluded from the consideration of the jury, not be■cause it was incompetent or irrelevant, for it was obviously .and unquestionably neither.
The ground upon which the court probably proceeded was fhatthe facts were undisputed, and that the question of neg
Even if the court so regarded the motion, we think the-court erred in sustaining it, for two reasons :
First. We think the defendant was not entitled to have-competent and relevant testimony excluded, even though the court should consider that no case of negligence had been made out, unless and until it had admitted the truth of the facts sought to be established by it, because, where the facts are disputed, the question of negligence is a mixed question of law and fact, and in such case the jury must find the facts, and the court must instruct them as to the rule of law which they are to apply to the facts as they may/find them. When the evidence has been offered by one side, and not admitted to be true in fact by the other side, the'facts are disputed, and the law is as stated above.. When, therefore, the court undertook to exclude all the. evidence on one side upon the motion of the other side, it. undertook and did conclude all questions of law and fact. This, we think, was erroneous. If, however, the fact had been admitted, then there would have been no issue of fact to try, and the question would have been one of law. This-is the first ground.
The second is that even if the facts were to be regarded as admitted by the motion to exclude, then we are of opinion that the court erred in deciding, as a question of law, that there was no negligence established by the admitted facts. The negligence appears to have been gross indeed. An unexpected train, running at an unexpected time, at an unprecedented rate of speed, not only fails, by
We think the judgment appealed from is wholly erroneous, and the same will be reversed and annulled, and the case remanded for a uew trial to be had. therein, where, if the same facts are offered in evidence, they must be considered by the jury, and not excluded by the court.
Judgment reversed.