112 Va. 183 | Va. | 1911
delivered the opinion of the court.
This is an action brought to recover damages for an injury by the Southern Railway Company to Ralph Wiley, an infant about two and a half years old.
The facts are as follows: Train No. 14 on the Richmond
The engineer swore that he did not see the child; that
When the evidence was concluded, the plaintiff and defendant asked for a number of instructions. The court granted the instructions asked for by the plaintiff, numbered 1, 2 and 3, and to this action of the court the defendant excepted. The defendant asked for six instructions, marked “A,” “B ” “C,” “D,” “E,” and “F”; but the court refused to grant “C” and “D,” and the defendant again excepted.
There was a verdict and judgment in favor of the plaintiff for $3,000, and the case is before us upon a writ of error.
We think instructions Nos. 1 and 2 propound familiar principles of law, and do not require discussion.
Instruction “C” asked for by plaintiff in error leaves wholly out of view the fact that the tracks of the Southern Railway Company at the point of the accident had long been used as a passway by the inhabitants of the village and country around, with the knowledge and acquiescence of the railway company. That these facts imposed upon the company the duty of keeping a reasonable lookout for persons upon the tracks, has been so frequently decided that it may be deemed the established law of this State. The same objection applies to instruction “D,” and both were properly refused by the circuit court.
The only point of difficulty arises upon instruction No. 3, given at the instance of the defendant in error. It proceeds upon the theory that the track at the point of the accident had not been used by the people of that vicinity as a walk and passway with the knowledge of the defend
It is admitted that as a proposition of law this instruction is correct; but the contention of the plaintiff in error is that there is no evidence to support it.
The testimony of Vaughan is that he plainly saw the child, although he was nearly one hundred feet further from the child than the engineer; that the engineer was looking in the direction of the child, a fact which the engineer himself admits in his testimony; and it is further shown that at the moment the engineer was not engaged in the performance of any other duty; that the train, at the time it struck the child, was moving so slowly that it could have been stopped within the space of ten. feet; and the sole question is whether upon these facts a jury had the right to infer, not that the engineer should have seen the child, but that he did in point of fact see it in time to have avoided- the accident.
There is no suggestion that the eyesight of the engineer was not as good as that of the average man — the presumption, indeed, is that it was better than the average, for engineers are inspected and tested with respect to their vision. 'He was under no disadvantage of position; on the contrary, the advantage of position was with him, as he was the nearer of the two to the child.
In the case of N. & W. Ry. Co. v. Crowe’s Admx., 110 Va. 798, 67 S. E. 518, an analogous state of facts appears. In that case a witness testified that neither he
In the case of Artz v. Railroad Co., 34 Ia. 154, cited with approval in N. & W. Ry. Co. v. Crowe’s Admx., supra, the court, after a full discussion of this subject, concludes that “an object and power of sight being conceded, the one may not negative the other.”
We therefore conclude that the jury, which heard and saw the witnesses and is the judge of the credit to be accorded to the testimony, may with propriety have found, upon a review of all of the evidence before it, that the engineer in fact discovered the position of the child in time to have avoided the injury inflicted upon him.
We are, therefore, of opinion that the judgment should be affirmed.
Affirmed.