Heard v. C. & O. Railway Co.

Decision Date19 September 1885
Citation26 W.Va. 455
CourtWest Virginia Supreme Court
PartiesHeard v. C. & O. Railway Co.
1. The rule for determining what facts shall be considered as estab-

lished in cases of demurrer to the evidence, when all of it is adduced by the demurree is, the court shall regard the demurrant as necessarily admitting by his demurrer not only the credit and truth of all the evidence but all inferences of fact that may be fairly deduced from it; and in determining the facts inferable from the evidence, inferences most favorable to the demurree will be made in cases where there is grave doubt which of two or more inferences shall be drawn. Unless there is a decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made in his favor. (p. 457.)

2. If the evidence is such, that the court ought not to set aside the

verdict of a jury in favor of the demurree, then upon a demurrer to that evidence the court should give judgment against the demurrant. (p. 458.)

3. A case in which the judgment of the circuit court, sustaining the

defendant's demurrer to the plaintiff's evidence in an action for negligently killing the plaintiff's mule by the train of the defendant, is reversed by this Court and judgment given for the plaintiff for the damages found by the jury. (p. 459.)

The facts of the case appear in the opinion of the Court.

E. W. Wilson for plaintiff in error. J. H. Ferguson for defendant in error.

Snyder, Judge: This action was commenced December 1, 1882, before a justice of Kanawha county by W. B. Heard against the Chesapeake and Ohio Railway Company to recover the value of a mule alleged to have been negligently killed by the defendant. The justice rendered judgment in favor of the plaintiff for $150.00, and the defendant at once took the case by appeal to the circuit court of said county wherein there was a trial de novo by jury which found a verdict in favor of the plaintiff for $125.00, subject to the judgment of the court on the defendant's demurrer to the evidence. The court, on April 4, 1883, pronounced judgment for the defendant on the demurrer to the evidence, to which the plaintiff excepted and obtained this writ of error.

The only question presented here is, whether or not the court erred in sustaining the defendant's demurrer to the evidence. The defendant offered no evidence and the substance of that adduced by the plaintiff is as follows: A little after daylight on a day of the last of August or first of September, 1882, as the passenger express train of the defendant was passing over its road going east at a speed of thirty miles an hour, the train struck and killed the plaintiff's mule about 150 yards above Paint Creek depot in Kanawha county. The road, in the direction from which the train approached the place where it killed the mule, was straight and the mule could have been seen from the train 500 or 600 yards before it was struck. No signal was given, nor whistle sounded, and the train did not check up or stop either before or after striking the mule. One witness testified:" I saw the train kill the mule. I saw it just as the train struck it right at the spring. Train was between me and mule. Spring is about three feet from railroad track on side of track that the spring is, there was a bank and fence. The bank was three feet high and slanting. When I saw it, it appeared to be trying to get away; it was trying to go up the bank. I did not see the mule on the track. It was by the side of the track just as the train caught it. It was the side of the train that struck it. Piece of step of passenger coach was torn off by the mule. Just as I discovered the mule the train was right on it. That was the first I saw of the mule. I was on the river side of the track, but in front of place where the mule was struck. The mule was on hill-side of the track. I was about forty yards from where it was struck. Went right to it. It was killed immediately it was broke all to pieces." Another witness testified that he was an employe of the defendant; that he did not know what train killed the mule; made a report of finding this mule to the division master of defendant. He thought the fast train could be stopped in a distance of 200 yards." The spring referred to by other witness is six or seven feet from track on side next to hill on a level with the track. There is a fence up the hill about ten or fifteen feet off. The mule's neck was broken close up to his shoulder the head was lying next to the bank, and the other part next to the track. There was six or seven feet between the rail nearest the bank and the bank."

The foregoing is all the evidence bearing on the question of negligence in the record; and it seems to me, that it was sufficient to warrant a verdict for the plaintiff. The rule in cases of demurrer to evidence where there is no conflict in the evidence as in this case is, that the demurrant by his demurrer necessarily admits not only the credit of the evidence demurred to but all inferences of fact that may be fairly deduced from it, and in determning the facts inferable from the evidence, inferences most favorable to the demurree will be made in cases where there is a grave doubt which of two or more inferences shall be drawn. In such cases it is not sufficient, that the mind of the court should incline to the inference favorable to the demurrant, to justify it in making that inference the ground of its judgment. Unless there be a decided preponderance of probability or reason against the inference that might be made in favor ot the demurree, such inference ought to be made. The demurrer withdraws from the jury, the proper triers of facts, the consideration of the evidence by which they are to he ascertained;...

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    • June 17, 1958
    ... ... Atlantic Trucking Company, 129 W.Va. 267, 40 S.E.2d 324; Fleming v. McMillan, 125 W.Va. 356, 26 S.E.2d 8; Jones v. Virginian Railway Company, 115 W.Va. 665, 177 S.E. 621; Fleming v. Hartrick, 100 W.Va. 714, 131 S.E. 558; Massie v. Peel Splint Coal Company, 41 W.Va. 620, 24 S.E ... 196, 70 S.E.2d 814; Nichols v. Camden Interstate Railway Company, 62 W.Va. 409, 59 S.E. 968; Bulkley v. Sims, 48 W.Va. 104, 35 S.E. 971; Heard v. Chesapeake and Ohio Railway Company, 26 W.Va. 455; Fowler v. Baltimore and Ohio Railroad Company, 18 W.Va. 579. Upon a demurrer to the evidence ... ...
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    ... ... Heard v. Chesapeake and Ohio Railway Company, 26 W.Va. 455; Nichols v. Camden Interstate Railway Company, 62 W.Va. 409, 59 S.E. 968; Bulkley v. Sims, 48 ... ...
  • Campbell v. Chesapeake & O. Ry. Co.
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    • November 17, 1931
    ... ... to Circuit Court, Kanawha County ...          Action ... by Myron G. Campbell against the Chesapeake & Ohio Railway ... Company. Judgment for the plaintiff, and the defendant brings ...          Judgment ... reversed, verdict set aside, and a new trial ... v. Railway Co., 69 W.Va. 271, 71 S.E. 284, 34 L.R.A. (N ... S.) 682; Peabody Insurance Co. v. Wilson, 29 W.Va ... 528, 2 S.E. 888; Heard v. Railway Co., 26 W.Va. 455; ... Garrett v. Ramsey, 26 W.Va. 345. But we are not so ... sure that the proof was filed in time. The declaration, ... ...
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