A.C.L.R.R. Co. v. Wheeler

• Decision Date: 18 March 1926
• Citation: 147 Va. 1
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY v. J. L. WHEELER.
• Court: Virginia Supreme Court

Page 1

147 Va. 1

ATLANTIC COAST LINE RAILROAD COMPANY v. J. L. WHEELER.

Supreme Court of Virginia, Richmond.

March 18, 1926.

Reheard January 20, 1927.

1. APPEAL AND ERROR — Setting Aside Judgment and Verdict — Case Considered as on a Demurrer to the Evidence — Section 6363 of the Code of 1919. — Under the Code of 1919, section 6363, the verdict of the jury and judgment of the trial court cannot be set aside unless it appears from the evidence that they are plainly wrong or without evidence to support the verdict. In determining this question, where it "involves the credibility of witnesses whose testimony the jury might reasonably have believed, or the weight to be given to their testimony, or a question of a mere preponderance of the evidence," the case must be considered as on a demurrer to the evidence by the plaintiff in error.

2. NEGLIGENCE — Natural and Probable Consequences — Ability to Foresee Particular Injury. — When defendant's primary negligence has been established, plaintiff's right to recover does not depend upon defendant's ability to foresee or anticipate that the particular injury might result from such negligence. Under such circumstances, the defendant is liable for the natural or probable consequences of its own act. In other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, then he is liable for an injury proximately resulting therefrom, although he might not have foreseen the particular injury which did happen.

3. MASTER AND SERVANT — Inexperienced Servant — Warning. — It is the duty of the master to inform an inexperienced servant of danger ordinarily incident to the service, and if he fails to do so and the servant had no opportunity to learn, then the servant will not be held to assume risks not obvious to one of his age, experience or judgment.

4. MASTER AND SERVANT — Inexperienced Servant — Warning — Questions of Law and Fact. — The question whether the servant should have been warned is always for the jury upon the evidence.

5. NEGLIGENCE — Proximate and Remote Cause — What Constitutes Proximate Cause. — To constitute proximate cause, creating liability for negligence, the injury must have been the natural and probable consequence of the negligent act. If the consequences follow in unbroken sequence from the wrong to the injury, without any intervening efficient cause, it is sufficient, if at the time of the negligence the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result from his negligence.

6. APPEAL AND ERROR — Negligence — Negligence for the Jury — Case at Bar. — In the instant case, an action by a servant against his master for injury to his eyes, alleged to be due to lead poisoning, caused by the negligence of the master while he was employed as a painter, the jury found for the plaintiff. There was ample evidence introduced tending to prove a different state of facts which if believed by the jury would have justified a different conclusion upon the question of the defendant's primary negligence. But this was a question for the jury, and their finding against the defendant is conclusive on appeal.

7. MASTER AND SERVANT — Negligence of Master — Lead Poisoning — Proximate Cause — Case at Bar. — In the instant case, an action by a servant against his master for injury to his eyes alleged to have been caused by the negligence of the master while the servant was employed as a painter, the jury found for the plaintiff. The defendant, knowing that the use of a paint blow gun when a strong wind was blowing would probably cause injury to the operators, purchased face masks for their protection, but negligently failed to warn or instruct the plaintiff of such danger, which failure caused the plaintiff to contract lead poisoning. Plaintiff was a carpenter and only temporarily employed as a painter. Loss of eyesight was the natural consequence of having his optic nerve atrophied by the action of the lead poison.

Held: That the negligence of defendant being the cause of the lead poisoning, which caused the injury, was the causa causans, or proximate cause, of the injury; and the fact that lead poisoning does not always injure one's eyesight was of no moment, since the evidence was that it did produce atrophy of the nerves and loss of vision in the instant case.

8. MASTER AND SERVANT — Proximate Cause — Question for the Jury — Case at Bar. — In the instant case, an action by a servant against his master for injury to his eyes through lead poisoning, it was contended that defendant's negligence was not the proximate cause for plaintiff's blindness. One of the experts testified that optic neuritis frequently follows lead poisoning.

Held: That the question of proximate cause was for the jury, and they having found that the alleged wrongful act was the proximate cause of plaintiff's loss of sight, it could not be said that their finding was without evidence to support it.

9. MASTER AND SERVANT — Contributory Negligence — Question for Jury — Injury to Eyes from Lead Poisoning — Case at Bar. — In the instant case, an action by a servant against his master for injury to his eyes from lead poisoning, the contributory negligence of plaintiff was for the jury.

10. NEGLIGENCE — Proximate Cause — Questions of Fact. — The question of what is the proximate cause of an injury is ordinarily a question for the jury.

11. INSTRUCTIONS — Repetition — Party's Theory Fully Covered. — Where the instructions given were exceedingly favorable to the defendant, and fully covering its theory of the case, it was not reversible error for the court to refuse other instructions asked for by the defendant.

ON REHEARING.

12. APPEAL AND ERROR — Case Considered as on a Demurrer to the Evidence — Case at Bar. — The instant case was an action by a servant against his master for damages for plaintiff's blindness. Plaintiff alleged that the proximate cause of his blindness was lead poisoning resulting from the negligence of the defendant whereas defendant asserted that the blindness was not the result of lead poisoning but of glaucoma, a disease of the eye, which is not the result of poisonous influence. There was evidence in support of both the theory of the plaintiff and the theory of the defendant, and the evidence was evenly balanced between the parties. The jury found for plaintiff and defendant appealed.

Held: That defendant's case not being of the exceptional character where a strict and technical enforcement of the rule that cases arising under section 6363 of the Code of 1919, are still to be heard in the Supreme Court of Appeals practically as on a demurrer to the evidence by the plaintiff in error, would work injustice, the appellant in the instant case stood practically as a demurrant to the evidence.

13. DEMURRER TO THE EVIDENCE — Statement of the General Rule. — A demurrant to the evidence is considered as admitting the truth of all his adversary's evidence unless inherently incredible, or judically 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.

14. APPEAL AND ERROR — Case Heard as upon a Demurrer to the Evidence — Question for Plaintiff in Error to Consider. — Where the jury has found for the plaintiff upon conflicting evidence the question which defendant has to consider is as follows: 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 verdict for plaintiff, could the trial court have set it aside under section 6251 of the Code of 1919, or could the appellate 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?

15. APPEAL AND ERROR — Conflicting Evidence — Weight of Evidence for Jury. — If there is conflict of testimony on a material point, or if reasonably fair-minded men may differ as to the conclusion of facts to be drawn from the evidence, or if the conclusion is dependent upon the weight to be given to 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 the appellate court.

16. APPEAL AND ERROR — Case Considered as on a Demurrer to the Evidence. — Under the rule governing a demurrer to the evidence on an appeal by a defendant from a judgment in favor of plaintiff, very little if any of the testimony for the defendant can be considered.

17. MASTER AND SERVANT — Negligence — Proximate Cause — Loss of Sight from Lead Poisoning — Case at Bar. — In the instant case, an action by a servant against his master for the loss of his sight through lead poisoning due to the negligence of the master, plaintiff's expert testified plaintiff was suffering with optic neuritis which might have been caused by lead poisoning. He also testified that lead poisoning may result from paint. Another expert for the plaintiff testified that plaintiff was suffering from glaucoma when he examined him, but that it did not follow that his trouble was not caused by lead poisoning.

Held: That upon the testimony and inferences which the jury might fairly have drawn therefrom the Supreme Court of Appeals was unable to say that a verdict for the plaintiff was plainly contrary to the evidence or without evidence to support it.

18. MASTER...