49 W. Va. 85 | W. Va. | 1901
P. M. Teel, administrator of George Teel, deceased, obtained
The facts are as follows: George Teel, deceased, was struck and killed by a passing train of the defendanYwhile he was sitting on the platform at Johnston’s Grove or Midway Park in Central City, said county. When the engineer discovered him, he was sitting on the platform with his feet near the rail and leaning forward with his head downward. He immediately began to blow the whistle not less than three hundred feet away in a continuous, alarming and distracting manner and when he found this produced no effect, he tried to stop his engine, but ire was too close to do so entirely, and some portion of the train struck Teel about the head with such force as to result in his death. There is no dispute about the engineer’s sounding the alarm whistle, but the contention of the plaintiff is that the engineer was guilty of negligence in not noticing'the helpless condition of Teel and stopping the train in time to save him. The deceased was a young man twenty-five years of age with no physical defects of either sight or hearing, and it is not known that he was either drunk or asleep. The jury found a verdict of two thousand two hundred dollars subject to the demurrer to the evidence.
The question is mooted in this case as to whether this Court in determining a demurrer to evidence is to be governed by the rule as stated in Maple v. John, 42 W. Va. 38, and approved in Talbot v. Railway Company, 42 W. Va. 560, or the rule as contended for in Hogg’s Pleading and Forms, (2 Ed.) 537, as sustained by Gunn v. Ohio River Railroad Co., 42 W. Va. 676; Bennett v. Perkins, 47 W. Va. 425, (35 S. E. 8), and Shaver v. Edgell, 48 W. Va. 502, (37 S. E. 664).
The rule as stated in the first cases is that “Hpon a demurrer to evidence, the demurrant in this State is not held to waive any of his competent evidence; but where it conflicts with that of the demurree it will be regarded as overcome, unless it manifestly appears to be clearly and decidedly preponderant.” Talbot v. Railway Co., cited. This rule is deduced from the change in section 9, chapter 131, of the Code, which provides: “In the trial of a case at law in which a writ of error or supersedeas lies to the Court of Appeals a party may except to any action or opinion of
Before the enactment of this statute a motion to set aside the verdict of a jury was treated as a demurrer to the evidence, and all the conflicting evidence of the party making the motion was disregarded. After its enactment the rule was established that the court must consider all the evidence, whether conflicting or not, and if the verdict of the jury was contrary to the evidence or plainly against the decided and clear preponderance of the evidence or without sufficient evidence it must be set aside. Johnson v. Burns, 39 W. Va. 658. The rule as contended for by Mr. Hogg in his valuable work, and which he not unjustly claims to be sustained by the later decisions of this Court, is the old rule that in demurring to the evidence, the demurrant must waive all his own evidence, which to any extent conflicts with the evidence of the demurree, and that the court notwithstanding the statute is not bound to consider such conflicting evidence, although it plainly and decidedly preponderates in favor of the demurrant. The principle case on which that careful and thoughtful author relies to sustain his view is Gunn v. Ohio River R. R. Co., 42 W. Va. 676. This case, however, is not entirely satisfactory on this question, for while he intimates that such is the rule, Judge
If, as claimed in the later case of Shaver v. Edgell, 48 W. Va. 502, (37 S. E. R. 664), the rule as to demurrer to evidence remains untouched by the statute, then we can no longer determine such demurrer by analogy to the verdict of a jury unless it be a verdict founded on the demurree’s evidence alone exclusive of all conflicting evidence on the part of the demurrant. That is to say, that though the evidence considered as a whole plainly and decidedly preponderates in favor of the demurrant, and although the court would set aside a verdict thereon in favor of the demur-ree, yet because of the demurrer, the plain and decided preponderance of the evidence must be wholly disregarded and judgment rendered in favor of the demurree, if there is any evidence tending to prove his case. If such be the law, the party in whose favor the conflicting evidence plainly and decidedly preponderates should not demur to the evidence and thereby give his case away, but he should move the court to instruct the jury to find' a verdict in his favor, which has heretofore been considered equivalent to a demurrer to evidence, but which should now be con
The question then presented to the court would be whether although the evidence plainly and decidedly preponderates in favor of the demurrant to such an extent that the court would set aside the verdict of the jury, if in favor of the demurree or would have sustained a motion to instruct the jury to find a verdict in favor of the demurrant, yet because of the demurrer judgment must be entered in favor of the demurree contrary to the plain and decided preponderance of the evidence. The present ease presents no such question, for the reason that the evidence in so far as it is material to the determination of the controversy does not seriously conflict.' Rejecting all the conflicting testimony it appears that the decedent being strong and healthy in mind and body, knowingly and deliberately seated himself in a place of danger, the engineer who was running his train rapidly saw his condition and to warn him sounded the alarm whistle to such an extent as to arouse the whole neighborhood. He made no change of position. The engineer on approaching nearer came to the conclusion that he was not going to move and immediately plugged the engine to stop the train, too late to save him. From the fact he did not move arises the presumption that he was either asleep, drunk, paralyzed or indifferent to consequences amounting to suicidal mania. There is no positive evidence of any of these things. The whole rests on mere conjecture. The truth with regard to his condition or the circumstances that controlled his actions must forever remain a tale untold. The only question here presented is, did the engineer discover that he was
The present case is governed by the principles of Raines v. Railway Co., 39 W. Va. 50. This, however, is a stronger case in favor of the defendant, for the reason that the engineer did his full duty in sounding the alarm whistle. In the Raines Case, as shown in my dissenting opinion, the alarm whistles were given too late to warn the obstructor. In the present case they were given in time, and with force enough to arouse the neighborhood. In 2 Ror. R. R., 1027, the law is stated to be that “The servants in charge of a train have a right to presume that a man on the track is of sound mind and good hearing, and will get off in time to avoid danger, * * * * and therefore, the train is not obliged to stop, but is only bound to ordinary care of warning by whistling and bell ringing, if the person is seen by persons in charge of it, which is due to all persons on general principles. This done in time for avoiding the danger the. company Is not liable.'” The engineer has the right to continue the speed of his train on the presumption that the obstructor of the right of way is of sound mind and good hearing, and will protect himself until it becomes plainly apparent to him that the obstructor is helpless, then if necessary to avoid the destruction of life or bodily injury he should stop his train. Neither the engineer nor other person knows that decedent was helpless, but as soon as it
This is cetrainly a case plainly for the defendant, and the circuit court committed no error in sustaining the demurrer to the evidence.
The judgment is affirmed.
Affimed.