Anderson v. Clinchfield R. Co.

• Decision Date: 09 September 1938
• Citation: 171 Va. 87
• Parties: J. H. ANDERSON, ADM'R, ETC. v. CLINCHFIELD RAILROAD COMPANY.
• Court: Virginia Supreme Court

Page 87

171 Va. 87

J. H. ANDERSON, ADM'R, ETC. v. CLINCHFIELD RAILROAD COMPANY.

Supreme Court of Virginia, Staunton.

September 9, 1938.

Present, Holt, Hudgins, Gregory, Browning and Spratley, JJ.

1. EVIDENCE — Striking out Evidence — Not a Denial of Right to Jury Trial. — While consideration of a motion to strike the evidence involves weighing of evidence for the purpose of ascertaining whether or not a plaintiff has introduced sufficient evidence to sustain a verdict, if one were based thereon, the elimination of all evidence from consideration by a jury is not an invasion of the province of the jury by the trial court, and granting the motion is not in effect a denial of plaintiff's right to have a civil controversy settled by a jury.

2. QUESTIONS OF LAW AND FACT — Conflicts in Testimony. — Substantial conflicts in testimony must be submitted to a jury, but where there is no real conflict, juries should decide questions of fact in accordance with the testimony submitted.

3. CROSSINGS — Signals at Crossings — Positive and Negative Testimony — Case at Bar. — In the instant case, an action for the death of plaintiff's intestates at a railroad crossing, the driver of the automobile in which plaintiff's intestates were riding testified that as he approached the crossing on a road which descended from the top of a mountain, he reduced the speed of the car to about five miles an hour when some twenty-five or thirty feet from the right of way, and at this point he looked and listened for an approaching train, but did not hear or see any. Nine witnesses for defendant testified that the statutory crossing signals were given, and while the automobile driver testified that he did not hear either the whistle or the bell and that he could have heard the whistle if it had been blown close to the crossing, at least within 500 or 600 feet thereof, he also testified that he did not know whether he could have heard the bell if it had been ringing. At the conclusion of the introduction of this evidence, the trial court sustained defendant's motion to strike and plaintiff assigned error.

Held: That plaintiff had clearly failed to show by a preponderance of the evidence that defendant's servants failed to sound the requisite statutory signals, whereas defendant had shown without substantial contradiction that these signals were given.

4. CROSSINGS — Signals at Crossings — Scintilla of Evidence Showing Failure to Give Signals — Case at Bar. — In the instant case, an action for the death of plaintiff's intestates at a railroad crossing, the driver of the automobile in which plaintiff's intestates were riding testified that as he approached the crossing on a road which descended from the top of a mountain, he reduced the speed of the car to about five miles an hour when some twenty-five or thirty feet from the right of way, and at this point he looked and listened for an approaching train, but did not hear or see any. Nine witnesses for defendant testified that the statutory crossing signals were given, and while the automobile driver testified that he did not hear either the whistle or the bell and that he could have heard the whistle if it had been blown close to the crossing, at least within 500 or 600 feet thereof, he also testified that he did not know whether he could have heard the bell if it had been ringing. At the conclusion of the introduction of this evidence, the trial court sustained defendant's' motion to strike and plaintiff assigned error.

Held: No error. While there was a scintilla of quasi-positive evidence tending to show that the statutory signals were not sounded, the burden was upon plaintiff to show by a preponderance of evidence that they were not given, and this he failed to do.

Error to a judgment of the Circuit Court of Dickenson county. Hon. Alfred A. Skeen, judge presiding. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

S.H. & Geo. C. Sutherland, for the plaintiff in error.

James J. McLaughlin, Burns & Lively and W. L. Rush, for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

The administrators of Cora Hall and Claude Mullins, who were killed at a grade crossing, brought separate actions for death by wrongful act, which were tried together, resulting in verdicts for defendant, the Clinchfield Railroad Company. Plaintiffs in the lower courts obtained these writs of error.

At the conclusion of the introduction of evidence, the trial court sustained defendant's motion to strike. This ruling constitutes the only assignment of error.

Plaintiffs contend that when a trial court eliminates all evidence from consideration by a jury, it invades the province of the jury and passes on the weight of the evidence, and is in effect a denial of plaintiffs' right to have a civil controversy settled by a jury.

Consideration of the motion does, in a measure, involve the weighing of evidence for the purpose of ascertaining whether or not a plaintiff has introduced sufficient evidence to sustain a verdict if one were based thereon. The motion to strike is the logical sequence of the abolition of the scintilla doctrine. Judge Keith, in sounding the death knell of this absurd ruling in Virginia, said in C. & O. Ry. Co. F. W. Stock & Sons, 104 Va. 97, 108, 51 S.E. 161, 165: "It is true that what is known as the scintilla doctrine, has heretofore prevailed in this State, by force of which courts have been required to give instructions though the evidence by which they were to be supported was such that a verdict founded upon it could not be maintained. In other words, a trial court might, under what is known as the scintilla doctrine, be reversed for failure to give an instruction which rightly propounded the law, and then be again reversed for sustaining a verdict in obedience to the instruction, because not supported by sufficient evidence. Such a doctrine does not seem consonant with reason, nor promotive of good results in the administration of justice."

The practical use of the motion is now firmly established in this jurisdiction. Its restrictions and limitations in application are fully stated in the following authorities: Fleshman Bibb, 118 Va. 582, 88 S.E. 64; Green Smith, 153 Va. 675, 151 S.E. 282; Limbaugh Commonwealth, 149 Va. 383, 140 S.E. 133; Barksdale Southern Railway Co., 152 Va. 604, 148 S.E. 683; Buchanan Wilson, 159 Va. 49, 165 S.E. 422; Catron Birchfield, 159 Va. 60, 165 S.E. 499; Mears Accomac Banking Co., 160 Va. 311, 168 S.E. 740; Virginia E. & P. Co. Mitchell, 159 Va. 855, 164 S.E. 800, 167 S.E. 424; Bray Boston Lumber & Builders' Corp., 161 Va. 686, 172 S.E. 296; Leath Richmond, etc., Railroad Co., 162 Va. 705, 174 S.E. 678; Richardson Appalachian Electric Power Co., 163 Va. 394, 175 S.E. 727, 176 S.E. 471; Ward Clark, 163 Va. 770, 177 S.E. 212; Rawle McIlhenny, 163 Va. 735, 737, 177 S.E. 214, 98 A.L.R. 930; Walton Walton, 168 Va. 418, 191 S.E. 768.

The vital question presented in this record is whether plaintiffs' evidence is sufficient to support...