Couch v. Chesapeake & O. Ry. Co.
| Decision Date | 20 April 1898 |
| Citation | 30 S.E. 147,45 W.Va. 51 |
| Parties | COUCH v. CHESAPEAKE & O. RY. CO. |
| Court | West Virginia Supreme Court |
Submitted January 15, 1898
Error to circuit court, Kanawha county; Frank A. Guthrie, Judge.
Action by James H. Couch, Jr., administrator, against the Chesapeake & Ohio Railway Company. Defendant had judgment, and plaintiff brings error. Affirmed, by divided court.
Brown Jackson & Knight, C. B. Couch, and J. H. Couch, Jr., for plaintiff in error.
Simms & Enslow, for defendant in error.
BRANNON P.
Frank Morris Hodge, a child two years old, was killed while sitting on the end of a cross-tie, by a freight train on the Chesapeake & Ohio Railway, April 18, 1896, and his administrator sued the railroad company for damages, and upon defendant's demurrer to the evidence, judgment was rendered for defendant. I do not consider the Gunn Case, 42 W.Va. 676, 26 S.E. 546, as controlling this case. In that case it was settled that two children, five and six years old, and more easily seen than this small child, were sitting on a trestle, plain to be seen, at the time they were killed and had been for 15 minutes before; whereas it is impossible to say when this little child got upon the end of the cross-tie. It had walked, as shown by its tracks, 180 feet along the ditch, 2 feet deep, and climbed up the embankment of the roadbed, 2 feet high; and why may we not say, from these known, fixed facts, that the engineer did not probably see it until within 200 yards of it? In the Gunn Case, whether the engineer did see the children or not, he could have done so by reasonable diligence, and should have done so, and therefore the company was liable; but in this case no evidence tells us when the child got upon the cross-tie, so as to be seen. Then how can we say that the engineer could have seen it? He likely could not have seen it in the ditch, 2 feet deep; and it might have been in the act of crawling up the roadbed, hidden by the ties, until the train was within 200 yards, so that until then it could not have been seen. Thus, we cannot convict the company till we can say either that the engineer did see the child or could have done so. The dress of the child was brown, about the color of the sand and gravel of the roadbed. The engineer says he first saw it when 200 yards from it, and even then thought it was a chicken, when later it turned its head, and he saw it was a child, --too late to stop this train, of engine and thirty cars, to save it. He says the rail made a glare before the train in the bright sunshine, and hindered his sight. There is no contradictory evidence as to this. Would the engineer willfully run over and murder the child? The human heart revolts at such a deed, and disbelieves it, and the least liberality tells us that the engineer did not in fact see him before it was too late; and, as above stated, we cannot say that the child was long enough where he could be seen to say that the engineer could have seen him. For these reasons, JUDGE ENGLISH and I affirm the judgment.
On a demurrer to evidence in the case of James H. Couch, Jr., administrator, etc., against the Chesapeake & Ohio Railway Company, the circuit court of Kanawha county gave judgment for the defendant. The plaintiff obtained a writ of error. The material part of the evidence is as follows: Frank Morris Hodge, an infant two years of age, was killed while sitting on the end of a cross-tie on the defendant's road, by one of defendant's freight engines. He had but a few moments prior thereto slipped away from the presence of his parents, who resided across the public road from the place of the accident. There were no obstructions in the way, and it was a bright, sun shiny afternoon, and the track was perfectly clear for about one-half mile; so there was nothing to prevent a person with good sight, keeping a lookout, from either seeing the child upon or close to the track, as his foot-prints showed in the ditch he had wandered along it for quite a distance. The fireman was busy firing the engine, while the engineer, whose duty it was to keep a lookout to avoid such accidents, testifies that he was keeping such lookout as was consistent with his other duties; that there was a glare of sunshine along the rails about a foot wide; that he did not see the child until he got within 200 yards of it, too late to stop his train, and thought it was a chicken until it turned its head. The cylinder cock of the engine struck the child on the head, and killed it.
This case comes exactly within the rule established by this court in the case of Gunn v. Railroad Co., 42 W.Va. 676, 26 S.E. 546: "If a child trespassing on a railroad track is struck by an engine, the company is liable, if the engineer, by such careful and vigilant lookout as is consistent with other duties, could have seen the child in time to prevent the accident." "So if the child is going towards the track, or running near it, evidently going on it." The undisputed circumstances show that there was no natural object in the way to prevent the engineer from seeing the child. The situation therefore necessarily raises the presumption of negligence, and casts on the defendant the burden of showing that a proper lookout was kept, and the failure to see the child was occasioned by other fault than that of the engineer. The engineer testifies that the lookout was kept, and that he did not see the child until it was too late to save it. He was looking along the track. There was a glare on the rails about a foot wide, and, when he got within 200 yards, he saw something that looked like a chicken, but on closer observation turned out to be a child. If the testimony of the engineer is to be taken as true, then the court did right in sustaining the demurrer. But on whom does the law place the duty of weighing his testimony with the facts and circumstances surrounding the case, and determining his credibility? Not upon the court, but upon the jury. If the jury could say that the facts and circumstances are such, including the appearance of the witness and his manner of testifying, as to rebut his testimony, and render it unworthy of belief, then the court should not have sustained the demurrer; for the credibility of witnesses is not for the court to pass upon, but is wholly with the jury. Scott v. Railroad Co., 43 W.Va. 484, 27 S.E. 211; Akers v. De Witt, 41 W.Va. 229, 23 S.E. 669; Johnson v. Burns, 39 W.Va. 669, 20 S.E. 686; Young v. Railroad Co. (W. Va.) 28 S.E. 932.
If the undisputed facts and circumstances did not tend to contradict the evidence of the engineer, but corroborated it, then the court would sustain the judgment, not because of the evidence of the engineer or other witnesses, but because the corroborating facts render it unnecessary to pass on the weight of the oral testimony or the credibility of the witnesses. Such was the case of Davidson v. Railway Co., 41 W.Va. 407, 23 S.E. 593. The engineer is an interested witness. His apparent negligence is the alleged cause of the accident. He would naturally want to relieve himself from blame, and remain in good repute with his employers. His future employment might depend thereupon. The common law, through abundant caution, out of tenderness for the frailties of human nature, excluded the testimony of those in interest; not for the reason that all men, owing to interest, would swear falsely, but that many, under great temptation, would either testify falsely, color their evidence, or suppress the truth. Our present law, with more confidence in the integrity of human nature, with but few exceptions, allows all witnesses, however great their interest in the result, to testify, and leaves their credibility and the weight to be given to their evidence to their fellow men who compose the jury. This is a duty that cannot be imposed on the court, and litigants have the right to have it...
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