Chesapeake & O. Ry. Co v. Arlington

• Decision Date: 20 November 1919
• Citation: 101 S.E. 415
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. ARLINGTON.

101 S.E. 415

CHESAPEAKE & O. RY. CO.

v.ARLINGTON.

Supreme Court of Appeals of Virginia.

Nov. 20, 1919.

[COPYRIGHT MATERIAL OMITTED]

Error to Circuit Court, Bath County.

Action by L. N. Arrington against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and the defendant brings error. Reversed and remanded.

J. M. Perry, of Staunton, for plaintiff in error.

O. B. Harvey, of Clifton Forge, for defendant in error.

PRENTIS, J. The plaintiff in error, hereinafter called the "company, " complains of a verdict and judgment in favor of L. N. Arrington, hereinafter called the "plaintiff, " in an action for personal injury. The plaintiff was a brakeman employed by the company, had his right hand and forearm cut off four inches below the elbow, and the judgment is for $30,000, with interest and costs.

At the conclusion of the evidence, the plaintiff abandoned the first four counts of his declaration and relied solely upon the fifth count, which charges the defendant with violation of the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.), in that the defendant did not provide, maintain, and keep in repair couplers on its engines and cars which would couple automatically by impact, and which could be coupled successfully without the plaintiff going in between the said engines and cars to make the coupling, and that by reason of said failure it became and was necessary for the plaintiff, in order to make the coupling, to go between the front of the engine and the car and to arrange and adjust the couplers on said engine and car so that theywould couple, and that while so engaged the engine moved ahead a few feet and caught and crushed the plaintiff's hand and forearm.

The merits of the case lie within very narrow limits, because it has long been definitely settled that under the Safety Appliance Act there is an absolute and unqualified duty resting upon railway companies to provide coupling devices which will couple automatically by impact without the necessity of men going between the cars in order to make the coupling. St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; C, B. & Q. Ry. Co. v. U. S., 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582; Delk v. St. L. & S. F. R. Co., 220 U. S. 580, 31 Sup. Ct. 617, 55 L. Ed. 590; T. & P. Ry. Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874; L. & N. R. Co. v. Layton, 243 U. S. 617, 37 Sup. Ct. 456, 61 L. Ed. 931; San Antonio A. & A. Pass. Ry. Co. v. Wagner, 241 U. S. 476, 36 Sup. Ct. 626, 60 L. Ed. 1110; Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497, 36 Sup. Ct. 683, 60 L. Ed. 1125; L. & J. B. Co. v. U. S., 249 U. S. 534, 39 Sup. Ct. 355, 63 L. Ed. 757, April 21, 1919; C, R. I. & P. Ry. Co. v. Brown, 229 U. S. 317, 33 Sup. Ct. 840, 57 L. Ed. 1204; Virginian Ry. Co. v. Andrews, 118 Va. 486, 87 S. E. 577.

The question of fact, then, to be determined, is whether or not, under the existing circumstances, it was necessary for the plaintiff to go between the engine and the car in order to effect the coupling. It was just as clearly his duty to refrain from doing so unless the necessity therefor existed, as it was the duty of the company to furnish couplers which dispense with the necessity therefor.

Inasmuch as under our view of the case it is necessary to reverse the judgment and remand the case for a new trial, it is proper to notice numerous assignments of error so as to avoid similar controversies when the case is again tried.

1. It is complained that the trial court erred in refusing to exclude the testimony of the plaintiff to the effect that it was necessary for him to go in between the engine and the car. It is claimed that this is an opinion expressed upon a pivotal question which is to be decided by the jury, and is therefore illegal and incompetent. Several Virginia cases as well as cases from other jurisdictions, are cited in support of this view. The question has been much discussed, and it is impossible to reconcile the decisions. Here the very foundation of this action is the plaintiff's contention that it was necessary for him to go into the place of danger. While true that the jury had to determine this very point, it is also true that the only inference which can be drawn from every other part of his testimony and the facts stated by him to exist Is that he thought that such necessity existed. From these facts, which were few and simple, of course it was the ultimate province of the jury (and not of the witness) to draw the proper inference, either in his favor or against him, and his conclusion that the necessity existed cannot be substituted for the judgment of the jury. It is a misuse of language, however, to call such a statement a mere opinion. It is more properly a conclusion drawn from alleged facts, sometimes called the collective facts rule. 11 R. C. L. § 6, p. 571; section 52, p. 633. It would serve no good purpose to attempt to follow the refined reasoning of the various courts upon this question, for the decisions are in hopeless conflict. This, however, is pertinent from New York, etc., R. Co. v. Wilson's Adm'r, 109 Va. 754, 64 S. E. 1060:

"A witness who was present and acquainted with the existing conditions may give his opinion as to how far, under those conditions, a signal given by a red lantern could have been observed on the occasion in question. This is not expert evidence, but a matter of common experience, the value of which is to be determined by the jury, who have the witness before them and can judge of the value of his opinions."

In Norfolk, etc., Ry. Co. v. Tanner, 100 Va. 379, 41 S. E. 721, it is held that, experienced railroad trainmen, such as section hands, foremen in shops, and conductors, may testify as to the speed of trains. The weight of such evidence is to be determined by the jury, taking into consideration the character, intelligence, and experience of the witnesses. Of this there is no question. Note 34 L. R. A. (N. S.) 791.

In Southern A., etc., R. Co. v. Wagner, supra, the statement of the plaintiff, a brake-man with eight years' experience, that a coupler was out of order, was held admissible as the opinion of an expert acquainted with the operation of couplers. The cases of C. & O. Ry. Co. v. Mathews, 114 Va. 173, 76 S. E. 288, and Hot Springs Co. v. Revercomb, 110 Va. 240, 65 S. E. 557, illustrate this rule.

A question precisely similar to that here involved is decided in the case of Wabash Railroad Co. v. United States, 168 Fed. 5, 93 C. C. A. 397, where a trainman was asked:

"In the condition in which that coupler was on that end of the car at that time, what was necessary in order to operate the coupler?"

He answered that It was necessary for a man to go in between the ends of the cars and take the part of the chain that was left with the coupler to operate that coupler; and the court held that an expert trainman may be asked as to the condition of a car coupler in question, and as to what was necessary in order to operate that coupler, as the mode of operation of automatic coupling mechanisms and the effect of various condi-tions thereof are proper subjects for expert testimony.

Mr. Wigmore, in discussing the future of the opinion rule, says this:

"The opinion rule day by day exhibits its unpractical subtlety and its useless refinement of logic. Under this rule we accomplish little by enforcing it, and we should do no harm if we dispensed with it. We accomplish little, because, from the side on which the witness appears and from the form of the question, his answer, i. e., his opinion, may often be inferred. We should do no harm, because, even when the final opinion or inference is admitted, the inference amounts in force usually to nothing unless it appears to be solidly based on satisfactory data, the existence and quality of which we can always bring out, if desirable, on cross-examination. Add to this that, under the present illiberal application of the rule, and the practice as to new trials, a single erroneous ruling upon the single trifling answer of one witness out of a dozen or more in a trial occupying a day may overturn the whole result and cause a double expense of time, money, and effort; and we perceive the absurdly unjust effects of the rule. Add, finally, the utter impossibility of a consistent application of the rule, and the consequent uncertainty of the law, and we understand how much more it makes for injustice rather than justice. It has done more than any one rule of procedure to reduce our litigation towards a state of legalized gambling.

He suggests a radical remedy, which is worthy of consideration by the Legislature; that is, a statute in the following form:

"An inference or opinion may always be stated to the tribunal by a witness experientially qualified to form it, provided either that he has had adequate personal observation of the matter in question, or that he has the data hypothetically stated to him in court; and it is immaterial whether or not the data are capable of being so stated by him or by others that the tribunal is equally capable of drawing the inference, and whether or not the data are stated by him before stating his inference, and whether or not the inference involves the very subject of the issue, or one of the issues, before the tribunal; provided that the trial judge may in any case in his discretion exclude testimony involving an inference from data observed, or any other superfluous testimony, whenever in his judgment such testimony is merely cumulative or of undue personal weight, and is therefore undesirable." 3 Wigmore on Evidence, § 1929.

It is clear to us in this case that there was no error in permitting the plaintiff to state that the necessity of going between the cars existed, for the inference that this was his opinion was the only possible inference, if they credited his statements, which could be drawn by the jury from the testimony which he had already given as to the existing...