117 Va. 636 | Va. | 1915
delivered the opinion of the court.
Upon a demurrer to the evidence judgment was rendered for the defendant in error, plaintiff below, in an action to recover damages for the death of his intestate, Frank Jackson, which was attributed to the wrongful act of the defendant, the Washington and Old Dominion Railway.
The controlling question submitted for our determination is the sufficiency of the evidence to support the judgment.
The testimony shows that plaintiff’s intestate was a colored boy sixteen years old, who at the time he was killed was lying, presumably asleep, on the right-hand rail of the defendant’s track going west, or between the rails, within 800 feet of a station called “Carvil,” near the point where a much used foot path over the track turns off in the direction of his home. About ten o’clock on the night of the accident, car No. 74 was running as an extra, not on schedule time and without passengers, being operated by one Johnson as motorman.
In addition to the numerous authorities, cited in the Code, sec. 3351; Gordon v. Funkhouser, 100 Va. 695, 42 S.
In 8 Jones on the Law of Evidence, sec. 860, it is said: “The general rule that one cannot impeach his own witness must not be understood to imply that the party is bound to accept such testimony as correct. On the contrary, it is very clear that one producing a witness may prove the truth of material facts by any other competent evidence, even though the effect of such testimony is to directly contradict his own witness. A party is not bound by all the statements of a witness called by him, if adverse, even though no other witnesses are called to contradict him; the party may rely on the part of such testimony although in other parts the witness denies the facts sought to be proved. It has been well said that if the other rule prevailed, ‘every one would be at the mercy of his own witness, and if the first witness sworn should swear against him, he would lose the testimony of all the rest. This would be a perversion of justice.’ ” Citing Snell v. Gregory, 37 Mich. 500.
It is clear that upon the physical facts adverted to a jury might well have found that at the time of the accident Jackson was lying either on the rail or between the rails; and if that be true, then the court, upon a demurrer to the evidence, must so find. Perkins v. Southern Ry. Co., Ante, p. 851 85 S. E. 401, and cases cited.
It is likewise settled law that where “several inferences may be drawn from the evidence differing in degrees of probability, the court must adopt those most favorable to the demurree, unless they be strained, forced, or contrary to reason.’’ Horner v. Speed, 2 Pat. & H. 616; Burks’ Pl. & Pr. 487, et seq., where the subject is discussed and authorities assembled.
Upon this principle, Jackson must be held to have been lying in front of the car, and, when first seen by the motor
While the doctrine is well settled that a railroad company dees not owe to a trespasser on its track that “prudent circumspection which foresees and forestalls danger,” yet this court in several cases has quoted with approval the following statement of the law from Shearman and Red-field on the Law of Negligence (4th ed.), sec. 99: “The plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was proximately caused by the omission of the defendant, after having such notice of the plaintiff’s danger as would put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which plaintiff is exposed. It is enough if he has sufficient notice or belief to put a pruent man on the alert, and he does not take such precautions as a prudent man would take under similar notice or belief.” Seaboard and Roanoke R. Co. v. Joyner’s Admr., 92 Va. 354, 23 S. E. 773; Tucker’s Admr. v. N. & W. Ry. Co., 92 Va. 549, 24 S. E. 229; N. & W. Ry. Co. v. Dunnaway’s Admr., 93 Va. 29, 24 S. E. 698.
In decisions of this court where liability was denied, it appeared that those in charge of the train, on seeing an unknown object on the track, invariably have kept their attention fixed upon it until its character was determined, and then, if discovered to be a human being, exercised ordinary care to avoid injury. In this case the motorman con
For these reasons, the judgment of the. circuit court should be affirmed.
Affirmed.