Atl. Coast Line R. Co v. Wheeler

• Decision Date: 20 January 1927
• Citation: 136 S.E. 570
• Court: Virginia Supreme Court
• Parties: ATLANTIC COAST LINE R. CO. v. WHEELER.

136 S.E. 570

ATLANTIC COAST LINE R. CO.

v.WHEELER.

Supreme Court of Appeals of Virginia.

Jan. 20, 1927.

Error to Circuit Court, Chesterfield County.

On rehearing. Judgment affirmed. For former opinion, see 132 S. E. 517.

Wm. B. McIlwaine, of Petersburg, Robt. W. Strange, of Richmond, and Mann & Town-send, of Petersburg, for plaintiff in error.

Wm. Earl White and Chas. T. Lassiter, both of Petersburg, for defendant in error.

BURKS, J. A rehearing was granted in this case June 29, 1926. The case had been fully argued on the original hearing and carefully considered, but the case is on the border line, and it is conceded in the original opinion that the evidence was such that a verdict in favor of either party could not be set aside. Under these circumstances, some of the judges entertained some doubts as to our conclusion on the subject of proximate cause, and hence the rehearing was granted.

The rehearing has been had, and the case has been very fully argued again, both orally and on briefs, and, after a careful consideration, we adhere to the conclusions reached on the original hearing.

The petition for rehearing not only discusses the question of proximate cause, but argues at great length the question of the primary liability of the defendant. The petition, in effect, ignores the fact that the petitioner stands in this court as a demurrant to the evidence, and vigorously assails the facts which are set forth in the opinion as "tending to establish the primary negligence of the defendant." Some of the arguments of the petition are immaterial. In other instances, testimony for the plaintiff is sought to be overcome by conflicting evidence offered by the defendant. In others, it is said that there is no evidence in the record to sustain the statement in the opinion. This is a serious charge, not warranted by the record, but a detailed discussion of it would not be edifying or instructive. Upon a careful re-examination and reconsideration of the evidence, we find that the statement in the opinion on this subject is sustained by the record in every essential particular, and we adhere to it.

The other ground upon which a reversal is sought in the petition for rehearing is that defendant's negligence was not the proximate cause of the plaintiff's blindness; that his blindness was not the result of lead poisoning but of glaucoma, which is a disease of the eye, which is not the result of toxic or poisonous influence.

Before discussing the evidence, it is necessary to advert briefly to the position occupied by the petitioner in this court. Thepetitioner's case is not within the exception referred to in Norfolk & W. Ry. Co. v. Thayer, 137 Va. 294, 119 S. E. 107, and he stands here practically as a demurrant to the evidence.

A demurrant to the evidence is considered as admitting the truth of all his adversary's evidence, unless inherently incredible or judicially known to be untrue, and all just inferences that can properly be drawn therefrom by a jury, and as waiving all of his own evidence which conflicts with that of his adversary, or which has been impeached, and all inferences from his own evidence, although not in conflict with his adversary, which do not necessarily result therefrom; and if several inferences may be drawn from the evidence differing in degree of probability, those most favorable to the demurree must be adopted unless forced, strained, or manifestly repugnant to reason. Johnson v. Ches. & O. Ry. Co., 91 Va. 171, 21 S. E. 238; Ches. & O. Ry. Co. v. Anderson, 93 Va. 050, 25 S. E. 947; Wolonter v. U. S. Casualty Co., 126 Va. 156, 101 S. E. 58.

This rule has not been observed in the petition for rehearing. Nearly every witness introduced by the defendant was for the purpose of contradicting some testimony offered by the plaintiff, either as to facts or expert opinions, and free use has been made of such conflicting testimony in the petition to rehear. The real question which the defendant (petitioner for rehearing) has to consider was this: If, after the plaintiff had introduced all of his evidence and the defendant had been permitted to show consistent but omitted facts, the case had been submitted to the jury and they had found the present verdict, could the trial court have set it aside, under section 6251 of the Code, or can this court, under section 6363, set aside a judgment of the trial court in accordance with the verdict, because plainly contrary to the evidence or without evidence to support it?

We had occasion to examine this subject carefully in Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245, 108 S. E. 15, and it is there said:

"It is not sufficient that the judge, if on the jury, would have rendered a different verdict. It is not sufficient that there is a great preponderance of the evidence against it. If there is conflict of testimony on a material point, or if reasonably fair-minded men may differ as to the conclusions of fact to be drawn from the evidence, or if the conclusion is dependent upon the weight to be given the testimony, in all such cases the verdict of the jury is final and conclusive and cannot be disturbed either by the trial court or by this court, or if improperly set aside by the trial court, it will be reinstated by this court. But with all the respect that is justly due to the verdict of a jury, and which is freely accorded to it, if there has been 'a plain deviation from right and justice' even a court of law will not make itself a party to such a wrong by entering up judgment on it."

Under the rule governing a demurrer to the evidence, very little, if any, of the testimony for the defendant can be considered.

In the original opinion it is said (132 S. E. 519):

"Plaintiff's witness, Dr. J. W. Watkins, a duly licensed and experienced optometrist, examined the plaintiff's eyes with an ophthalmoscope in March, April, and May, 1923, and found him suffering with optic neuritis, which was producing atrophy of the optic nerve and causing a loss of vision. He says optic neuritis is an inflammation of the optic nerve which may be produced by many causes, including lead poisoning, and that lead poisoning caused plaintiff to have optic neuritis, which atrophied the optic nerve, and in May, 1923, was causing complete blindness, and that in December, 1923, he had no vision in his right eye. He agrees with the other doctors who examined Wheeler that in 1924 plaintiff was suffering from simple glaucoma. He also testified that lead poison may result from paint which is taken into the system through the mouth or nose or by absorption through the skin. * * *

"It was not discovered until November 16, 1923, when he was examined by Dr. M. G. Edmunds, physician and eye specialist, who testified for the plaintiff, that Wheeler was suffering from simple glaucoma, or hardening of the eyeball. Dr. Edmunds says the ophthalmoscope showed he had optic atrophy, and that both nerves were absolutely white; that the tonometer showed that his eye was a little bit hard. He diagnosed the trouble as optic atrophy, probably secondary to chronic glaucoma. Dr. Edmunds says, 'No one knows the cause of glaucoma'; that it is possible for Wheeler to have had optic neuritis which cannot now be detected on account of the presence of glaucoma, which is characterized by tension within the eyeball; that the fact that Wheeler was suffering with glaucoma does not mean that his trouble was not caused by lead poison; that the two troubles do not contradict each other; that lead poisoning results in blindness from its influence on the optic nerve by producing optic neuritis, and sometimes optic atrophy which often follows lead poisoning."

This statement of the evidence Is as favorable to the plaintiff in error as the record justifies. It appears further from the record that Dr. Edmunds, a witness for the plaintiff, testified in part as follows:

"Q. Does the fact that this man is suffering from glaucoma now mean in any way that his trouble was not caused by lead poisoning or other toxic infection?

"A. No; it does not mean it was not caused by that.

"Q. The two things don't contradict each other? "A. No.

"Q. Suppose...