Byrd v. Virginian Ry. Co.

• Decision Date: 18 February 1941
• Docket Number: 9133.
• Citation: 13 S.E.2d 273,123 W.Va. 47
• Parties: BYRD v. VIRGINIAN RY. CO.
• Court: West Virginia Supreme Court

13 S.E.2d 273

123 W.Va. 47

BYRD v. VIRGINIAN RY. CO.

No. 9133.

Supreme Court of Appeals of West Virginia.

February 18, 1941

Walter C. Plunkett, of Norfolk, Va., John R Pendleton, of Princeton, and Kingdon & Kingdon, of Mullens, for plaintiff in error.

Worrell & Worrell, of Mullens, for defendant in error.

LOVINS Judge.

The Virginian Railway Company appealed to the Circuit Court of Wyoming County from an adverse judgment of a justice of the peace in favor of B. F. Byrd. The action was based upon the destruction of two cows and the crippling of another by one of defendant's passenger trains. On appeal judgment was entered by the circuit court upon a jury verdict for Byrd in the amount of $200 and costs, and to that action of the court below, the Railway Company prosecutes this writ of error. The following facts appear:

On January 29, 1940, at about one o'clock in the afternoon passenger train No. 4 was proceeding eastward in the direction of Mullens, in the vicinity of Pierpont in Wyoming County. Coming out of a right curve through a cut in the hillside, the engineer's view, from his position on the right side of the engine cab, was obstructed somewhat by the hillside on his right; however, according to his testimony he observed some ten or twelve cattle along a sidetrack on his right and some distance ahead. Plaintiff's witnesses estimate the distance to the cattle from the engineer's first point of observation at from four hundred to eight hundred feet. Plaintiff's witness, Beavers, who was riding on the right side of the first passenger coach testified that when the engineer reached the point where his view was unobstructed that some ten or fifteen cattle were "angling" across the sidetrack and main line thereof at the time the front of the engine was from three hundred to three hundred fifty feet away. Engineer Akers made a service application of the brakes while still on the curve thereby reducing the speed of the train from about thirty miles per hour to about five miles per hour. When the cows disappeared from his view, and, in answer to his inquiry, the fireman had said he could see none, Akers increased the speed. Upon signal from the baggage car, he stopped the train within about one hundred and fifty feet, and found three cows had been struck; two were killed and the third injured after having been dragged, in the estimate of plaintiff's witnesses, from two hundred to five hundred feet before the engine came to a stop.

W. L. Blevins, a former fireman for the Railway Company, who had left its employment about 1923, testified for the plaintiff as an expert witness on the operation of railroad engines. After stating his experience with the operation of engines of freight and work trains and his familiarity with the particular section of the road where the cows were struck, he was asked this question: "Tell the jury, Mr. Blevins, in what distance a passenger train could have been stopped at the point where those cows were killed?" The trial court overruled this objection: "Objection, because there is nothing stated about the speed of the train and the witness is not qualified as a passenger engineer." Thereupon the witness answered: "Well, I would say anywhere from three to four hundred feet on a grade like that is there by making an emergency application of the brake." On cross-examination, Blevins testified that he had operated a passenger train on one occasion only and that he knew neither the number of coaches on No. 4 nor its speed at the time of the accident. There was no other testimony for the plaintiff bearing on this point.

The assignments of error made by the Railway Company are based upon the failure of the lower court to sustain the objection to the question herein quoted.

We are of the opinion that the witness Blevins was qualified as an expert on the question of the distance within which a passenger train could be stopped. Generally, such question is a proper subject for expert testimony. Norfolk Ry. & Light Co. v. Corletto, 100 Va. 355, 41 S.E. 740; Lawson on Expert Testimony, Second Edition, p. 92; El Paso Ry. Co. v. Havens, Tex.Civ.App., 216 S.W. 444; Wimsatt's Adm'x v. Louisville & N. R. Co., 235 Ky. 405, 31 S.W.2d 729.

Trial courts have been accorded wide discretion in permitting a witness to testify as an expert. "The rule seems to be that an expert need not have all the knowledge possible for one in his class, to entitle him to speak, but may testify unless it clearly appears that he is not qualified at all." State v. Brady, 104 W.Va. 523, 140 S.E. 546, 550, citing Richmond Locomotive Works v. Ford, 94 Va. 627, 27 S.E. 509; Lawson, supra, p. 250. However, some qualification as an expert must affirmatively be shown. Under this broad rule, Blevins probably qualified by showing his experience of seven years as a fireman for the defendant railroad and his occasional operation of trains thereon. Further, the ruling of the trial court as to the qualification of an expert witness will not be rever sed unless it clearly appears that the witness was not qualified. State v. Brady, supra; Richmond Locomotive Works v. Ford, supra; Lawson, supra, p. 276.

Generally speaking, questions propounded to expert witnesses, seeking to elicit an opinion, should contain a hypothesis. The reason for this rule of hypothetical presentation is well stated in section 683, Wigmore on Evidence, Third Edition: "Policy as well as principle, require that the form of the question be expressly hypothetical; because otherwise the jury, and perhaps the witness may be misled by the statement, as proved or admitted fact, of that which is as yet only an assertion of counsel or of witnesses. But this requirement is capable of being insisted upon with finical and injurious exactness. The harm from its violation can seldom be serious, and Courts should not find fault with omissions to use a formal hypothetical statement where the jury could not have been misled. The question need be only...