Dempsey v. ISToreolk
| Citation | 69 W.Va. 271 |
| Court | Supreme Court of West Virginia |
| Decision Date | 02 May 1911 |
| Parties | Dempsey, Adm'k., v. ISToreolk & Western Ry. Co. |
In considering a demurrer to evidence a proper test is whether the evidence would sustain a verdict for the party as to whose evidence the demurrer is entered, if one was returned by the jury and there was a motion to set it aside. If a verdict against the demurrant could not properly he set aside, there should be a judgment against him. (p. 272).
It is the duty of a locomotive engineer to look out for helpless trespassers on the track, so far as may be consistent with other duties of his position, and when he observes a child of irresponsible age on the track to take reasonable precaution for its safety, (p. 274).
It is negligence, binding the railway company, for a locomotive engineer, when his other duties do not demand attention and the situation permits a view, to fail to observe a child of irresponsible age walking by the side of the track and in dangerous proximity thereto, or, when, he does observe it and has distance in which to stop, to undertake to run a rapidly moving train by the child in that position, (p. 275).
Error to Circuit Court, Mingo Countv.
Action by James A. Dempsey, administrator, against the Norfolk & Western Railway Company., Judgment for plaintiff, and defendant brings error.
Affirmed.
Holt & Duncan, for plaintiff in error.
John S. Mar cum and John L. Stafford, for defendant in error.
Robinson", Judge:
A child sixteen months old was injured by a freight train of the defendant company so that it died. An administrator sued for damages in the premises. On the trial, defendant demurred to the evidence, the jury ascertained damages at $1500, and the court overruled the demurrer and entered judgment for plaintiff.
Two distinct grounds are submitted for a reversal of the judgment. First, it is asserted that negligence on the part of defendant has not been established. Second, the point is made that the injury resulted from the contributory negligence of the parents and that the same is imputable to the child.
The real question with which we must deal, in the determination of the proposition presented to overthrow the judgment, is this:. If the jury had found a verdict for plaintiff on the evidence taken from their consideration by the demurrer, would it be proper to set aside the verdict? In other words, could a jury have found from, the evidence a warranted verdict for the plaintiff? If a verdict so found could not be sustained on motion to set it aside, then the judgment on the demurrer is erroneous; otherwise, it is not. Kclley v. Railroad Co., 58 W. Ya., at page 221. See also, 4 Enc. Digest, Ya. & W. Ya., 540.
We have carefully considered the evidence. A verdict for plaintiff founded on it could not properly be disturbed. A finding of negligence on the part of defendant is sufficiently warranted. The case is very nearly controlled by Gunn v. Railroad Co., 42 W. Va. 676.
A jury reasonably could have believed that the child was on the track at the time the train was approaching, or so close to the track that the engine or cars were sure to endanger it. One reasonable inference is that the child wandered from its home near the railway, across the east bound track, to the space between the double tracks, and was toddling along that narrow, dangerous space in the direction its sister and other children had gone only a few minutes earlier. Again, it may be said that the little foot prints leading to the railroad, the place where the injured body was found immediately after the train had passed, and the time that elapsed after the child left the mother's sight, reasonably prove that the child was on the east bound track when the train was approaching, or across that track in the narrow space between the two tracks. These facts and circumstances place the child in a position where other evidence tends to prove that it was in full view from the engine when nearly 1400 feet away. True, for a small part of this distance, portions of the engine, because of a curve, would cut off the engineer's view. But we deem this immaterial. Thereis evidence tending to establish that the distance from which the engineer first could see the child was one sufficient in which to stop the train before reaching it. The engineer testifies that he was looking ahead while running this distance and that he saw no child on the track. But a jury could say that the facts and circumstances proved in relation to the child's position contradict the engineer's testimony. They could refuse to give his testimony credibility. Besides, the engineer does not say that he did not see the child walking by the side of the track. He invariably speaks of the track itself and not the space between it and the other track. A jury could reasonably believe that he was purposely not contradicting the facts and circumstances from which it may be inferred that the child was in that space at the time he says he was looking ahead. The time that the child had been out of the mother's sight was too short, as may well be inferred, for it to have been at some hidden point beyond the other track and to have come from its hiding and approached the train after the engine had passed. And there are other reasonable inferences which may be drawn from the evi- deuce, supporting a conclusion that the child was either on the track or in the dangerous space between the tracks at the time the engineer first...
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