Davis, D'R Gen. v. Ellis's Admx

• Decision Date: 26 February 1925
• Court: Virginia Supreme Court
• Parties: JAMES C. DAVIS, DIRECTOR GENERAL, ETC. v. MRS. IDA MAUD ELLIS, ADMX.

Page 366

146 Va. 366

JAMES C. DAVIS, DIRECTOR GENERAL, ETC. v. MRS. IDA MAUD ELLIS, ADMX.

Supreme Court of Virginia, Richmond.

February 26, 1925.

Reheard February 25, 1926.

1. NEGLIGENCE — Presumptions and Burden of Proof — Presumption from Accident. — Negligence is not to be presumed because the plaintiff has received an injury, but the facts from which negligence may be inferred must be proved by competent evidence. The burden is on the plaintiff to show how and why the accident occurred.

2. DEATH BY WRONGFUL ACT — Presumption of Negligence — Where Death Might Have Resulted from Either one of two Causes. — In an action for the death of one through another's negligence, it is incumbent upon the plaintiff, in the absence of direct evidence, to show the existence of such circumstances as would justify the inference that the injury which caused the death was due to the wrongful act of the defendant, and exclude the idea that it was due to a cause with which the defendant was unconnected, and not leave the question to mere speculation and conjecture.

3. DEMURRER TO THE EVIDENCE — Admission of Truth of Adversary's Evidence — Facts not Proven by the Evidence — Inferences. — While a party demurring to the evidence is considered as admitting the truth of his adversary's evidence, and all just inferences which can be properly drawn therefrom by a jury, he does not admit any fact not proven by the evidence, nor does he admit any forced or illogical deductions from the testimony.

4. NEGLIGENCE — Injury Resulting from one of two Causes — Presumptions and Burden of Proof — General Rule. — Where damages are sought to be recovered for injuries resulting from an accident alleged to have been caused by the negligence of defendant, the burden of showing negligence by a preponderance of the evidence is on the plaintiff, and if the injury might have resulted from one of two causes, for one of which the plaintiff was responsible, but not for the other, the plaintiff could not recover; neither could he recover if it was just as probable that the damage was caused by the one as by the other.

5. EVIDENCE — Negative Evidence — Whether Locomotive Carried Light — Case at Bar. — In the instant case, an action for death by wrongful act, three trainmen testified positively that there was a light on the tank of the engine that killed plaintiff's decedent as it backed through the yard going to the roundhouse, and that it continued to burn even after reaching the roundhouse. There were several other witnesses who corroborated their statements. Against this was the testimony of three witnesses to the effect that they saw no light. The court was of opinion that this presented a striking illustration of a conflict between negative and positive testimony, and that the legal effect of the testimony on this subject established the existence of the light at the time in question.

6. NEGLIGENCE — Presumptions and Burden of Proof — Presumption from Accident — Case at Bar. — In the instant case, an action for death by wrongful act, deceased was employed as a brakeman on one of the yard engines working in defendant's railroad yard, and was therefore familiar with the general conditions existing there. At the time of the accident he was apparently performing no duty by reason of his employment as a member of the crew attached to his engine. So far as the evidence disclosed no possible duty carried deceased to the point where the accident took place. There was a conflict in the evidence as to whether there was a light upon the tank of the engine which killed deceased as it backed through the yard, but there was positive testimony that a lookout was kept. There was nothing in the record to indicate that the failure to keep a lookout or to carry a proper headlight in any way contributed to the injury of the deceased or was the proximate cause of such injury.

Held: That there was no evidence to justify a jury in finding as a fact that defendant was guilty of any negligence that caused or contributed to the death of plaintiff's decedent.

ON REHEARING.

7. APPEAL AND ERROR — Demurrer to the Evidence — Grounds for Demurrer must have been Specifically Stated in Writing in the Court Below. — On appeal, when the case coming up is on a demurrer to the evidence, no ground of demurrer can be considered which has not been specifically stated in writing in the trial court.

8. APPEAL AND ERROR — Demurrer to the Evidence — More Than one Cause of Demurrer to the Evidence — No Particular Ground Stated as Relied on. — If a ground of demurrer to the evidence, as stated by the demurrant, is broad enough, when considered in the light of the facts and circumstances of the case, to embrace more than one cause of demurrer, and no particular ground is stated as relied on, the statute (Code of 1919, section 6117) is not complied with, and such ground of demurrer cannot be considered by the appellate court.

9. APPEAL AND ERROR — Demurrer to the Evidence — Grounds of Demurrer — Assignment of Error Based on a Ground of Demurrer which has not been Sufficiently Stated — Prejudice to Demurree. — No assignment of error, based upon a ground of demurrer to the evidence which has not been sufficiently stated as prescribed by section 6117 of the Code of 1919, can be considered by the appellate court, whether any of the grounds embraced in the statement in the trial court be good or bad — and regardless also of whether the demurree has been prejudiced or not.

10. APPEAL AND ERROR — Demurrer to the Evidence — Grounds for Demurrer must have been Specifically Stated in Writing in the Court Below — Case at Bar. — In the instant case, an action for the death of a brakeman in defendant's railroad yard, defendant demurred to plaintiff's evidence; the demurrer to the evidence was as follows: "(1) That the plaintiff's intestate assumed the risk of receiving the injury complained of; and, (2) that the negligence of the plaintiff's intestate was the sole proximate cause of the injury complained of."

Held: That the Special Court of Appeals was without jurisdiction to consider an assignment of error "that defendant was not negligent," and was therefore precluded from considering the question of whether or not the evidence showed or was insufficient to show negligence on the part of the defendant.

11. DEMURRER TO THE EVIDENCE — Admissions by Demurrant — General Rule. — On the demurrer to the evidence, the demurrant is considered as admitting the truth of all his adversary's evidence and all just inferences that can properly be drawn therefrom by the jury, and as waiving all his own evidence which conflicts with that of his adversary or which has been impeached, and all inferences from his own evidence (although not necessarily in conflict with his adversary's) which do not necessarily result therefrom.

12. NEGLIGENCE — Proximate and Remote Cause — Sole Proximate Cause — Brakeman Killed by Road Engine — Case at Bar. — In the instant case, an action for the death of a brakeman of a switch engine killed in defendant's railroad yard when struck by a road engine of defendant on the main line track, it was urged that the brakeman had no duty to perform in the place he was when struck, and that it was not shown why he was there. There was a demurrer to the evidence, one of the grounds of which was that "the negligence of plaintiff's intestate was the sole proximate cause of the injury." The road engine was running backwards without a light or lookout as required by the rules of the railroad. The inquiry was whether the brakeman was guilty of negligence which was the sole proximate cause of his injury. If it be conceded that the brakeman had no duties to perform at that particular spot or at that particular time, the mere act of going there could of itself be considered, at the most, as only contributing to the cause of the injury and not the sole proximate cause thereof. But the intervening act on the part of the defendant from which the injury followed as a direct and immediate consequence was the proximate cause of the brakeman's death.

13. NEGLIGENCE — Proximate and Remote Cause — Statement of the Rule. — It is not only requisite that damage actual or inferential should be suffered, but this damage must be the legitimate sequence of the thing amiss. The maxim of the law here applicable is that in law the immediate and not the remote cause of any event is regarded; in other words, the law always refers the injury to the proximate, not the remote cause. If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote.

14. DEATH BY WRONGFUL ACT — Death of Brakeman in Railroad Yard — Whether Brakeman was at Place of Injury in Pursuance of His Duties — Case at Bar. — In the instant case, an action for the death of a brakeman of a switch engine when struck by a road engine on the main track in plaintiff's railroad yard, it was urged that the brakeman had no duties to perform at the place where he was when struck. The evidence showed that the brakeman was seen in the proximity of the switches which it was his duty to throw.

Held: That upon this and other evidence the jury would have been justified in inferring that the brakeman was acting in the performance of his duties at the time of his injury, and on demurrer to the evidence the court must so infer.

15. DEMURRER TO THE EVIDENCE — Admissions by Demurrant — General Rule. — Upon a demurrer to the evidence, the testimony of witnesses for the demurree must be accepted as true unless inherently incredible, credible, or judicially known to be untrue; and, if several inferences may be drawn from the evidence, differing in degrees of probability, those most favorable to the demurree...