Johnson v. B. & 0. R. R. Co.

• Citation: 25 W.Va. 570
• Court: Supreme Court of West Virginia
• Decision Date: 11 April 1885
• Parties: Johnson v. B. & 0. R. R. Co.

25 W.Va. 570

Johnson

v.B. & 0. R. R. Co.

Supreme Court of Appeals of West Virginia.

Submitted January 28, 1885.

Decided April 11, 1885.

1. In an action for killing a horse the plaintiff as a witness for him self stated, that he had bought the horse four or five years before it was killed, and that it was worth when killed a certain price; on cross-examination the defendant asked him, what he paid for the horse, which question on objection by the plaintiff was excluded by the court. This was not error to the prejudice of plaintiff in error under the circumstances of this case. (p. 572.)

2. A party, who moves the court to exclude the evidence of the oppo- site side, must be treated as a demurrant to sueh evidence, at least as to the effect which is to be given to it. (p. 573.)

3. Negligence is in most cases a mixed question of law and fact; and generally what particular facts constitute negligence is a question for the determination of the jury from all the evidence before it bearing on the subject, rather than a question of law for the determination of the court, (p. 573.)

4. Where the case made by the evidence is such, that reasonable men unaffected by bias or prejudice would be agreed concerning the presence or absence of due care, the court would be justified in saying that the law deduced the conclusion accordingly, (p. 576.)

5. If the facts are unambiguous, and there is no room for two honest and apparently reasonable conclusions, the court should not be compelled to submit the question to the jury as one in dispute, (p. 576.)

6. In an action for injuries done to live-stock on a railroad-track by the negligence of the defendant the burden of proving the negligence is upon the plaintiff, but this does not require him to prove that he did not contribute to the negligence which occasioned the injury. The plaintift' will have shown a prima facie right to recover when he has proven that the injury has in fact been done and, in addition thereto, facts and circumstances from which a jury may fairly conclude that such injury was caused by the negligence of the defendant, leaving out of consideration any question of contributory negligence, (p. 576.)

7. A ease in which it is held, that the facts proved by the plaintiff made a prima facie case of negligence against the defendant, and the court properly denied the defendant's motion to exclude the plaintiffs evidence from the jury.

The opinion ot the Court contains a statement of the case.

11. M. Russell for plaintift in error.

J. A. Ew'mg tor defendant in error.

Snyder, Judge:

Action of tresspass on the case brought in the circuit court of Marshal county by Simeon Johnson against the Baltimore and Ohio Railroad Company to recover damages for the killing of two horses by the defendant. There was a verdict for the plaintift for $335.00 on which the court entered judgment July 5, 1882. During the trial the defendant ex- cepted to certain rulings of the court and to review those rulings obtained this writ of error.

1. The plaintiff having testified on his own behalf that the horses killed were worth $495.00, that lie had bought one of them five years before when it was only two years old and the other four years before they were killed, the defendant's counsel asked him on cross-examination, "How much did you pay for them?" On objection by the plaintiff's counsel the court excluded the question and this is assigned as error.

The time here was so great between the date of the purchase of the horses and that at which their value is sought, to be proved, that any answer given by the witness would have furnished very little, if any, information as to their value at the latter date. If the price paid could in any case be proper evidence of the value at a subsequent time, it would certainly not be proper where the intervening time was so long as it was in this instance. The price paid is not necessarily the market value of a horse, but rather the value placed upon it by the seller and the purchaser at the time. It will not be contended that the value placed upon the horse by the owner fixed by the estimate ot what it is worth to him would be proper evidence. The evidence excluded was ot this nature. In four or five years the intrinsic value of a horse would almost certainly change very materially; and not only so the market value of a horse of the same intrinsic value would probably be very much altered in that time. The plaintiff was not examined as an expert unless it be true as suggested by the counsel for defendant in error, that every man is an expert in horse flesh, but he was testifying on his own personal knowledge of the particular horses in question and his experience as to their market value. His was such testimony as is uniformly received in Virginia and this State to prove the capacity or sanity of a particular person with whom the witnesses are well acquainted, or to establish the value of land or other property, real or personal. The value of their testimony in sucb cases, depends not upon the skill of the witnesses, but upon the iacts known to them and upon which they base their opinions. Jarrett v. Jarrett, 11 W. Va. 584; Bank v. Rutland, 33 Vt. 414.

2. When the plaintift closed his evidence in chief the defendant moved the court to exclude the same, which motion the court denied, and this is also insisted upon as error.

The rule is settled in this State that a party, who moves to exclude the evidence of the opposite side, occupies the position of a demurrant to such evidence, at least, as to the rule of construing it. Dresser v. Transportation Company, 8 W. Va. 553; Schwarzbach v. Insurance Company, infra.

The rule in such case is, to give full faith and credit to all the evidence of thedemurree and all the inferences a jury might fairly draw from it, and if, when so considered, the evidence would sustain a verdict for the demurree the judgment of the court would be for him. Allen v. Bartlett, 20 W. Va. 46; Morgan v. Fleming 24 Id. 186. But on a motion to exclude the evidence in such case, the court could give judgment for neither party, it would simply deny or overrule the motion which would be equivalent to deciding that the evidence sought to be excluded would, at that stage of the case, sustain a verdict for the party whose evidence the court was asked to exclude, and would not, necessarily, be a refusal to entertain the motion.

It is stated in the argument here that " the court below felt itself constrained by certain expressions of this Court in the case of Washington v. B. $ 0. R. R. Company, 17 W. Va. 190, to overrule the defendant's motion to exclude the plaintiff's evidence." It is also stated in the brief of counsel for the defendant in error that, "the Waslmigton case not only does not 'compel such a ruling * * but does not even warrant it. There seems to be an impression especially since the decision of that case, that the decisions of this Court made it necessary to submit to the jury every case in which an allegation of negligence shall be made against a defendant. This impression has arisen, perhaps, from a careless reading of the Washington case and a failure to give due weight to the portion of the opinion which I take the liberty of italicizing: 4 Negligence is a mixed question of law and fact generally, and what particular facts constitute negligence is generally a question of fact for the determination of the jury from all the evidence before them bearing on the subject, rather than a question of law tor the determination ot the court. The most the court can do ordinarily, when there is a contrariety of testimony, and the question of care or negligence depends upon the consideration of a variety of circumstances, is to define the degree of care and caution required by law, and leave to the practical judgment and discretion of the jury the work of comparing the acts and conduct of the parties concerned, with the duties required by them under such circumstances.' Pages 214, 215.

Immediately following the above quotation and as a part of the same paragraph this Court in that case, says:" There may be some cases where the question of negligence may properly be one of law for the court; but such case must present some prominent act not depending upon surrounding ' circumstances for its quality, and in regard to the effect and character of which no room is left for ordinary minds to differ. Negligence is, however, generally a relative term, very much dependent upon the particular facte and circumstances of each case that occurs; so that what may be ordinary or reasonable care in one state of the case may be gross negligence in another." 17 W. Va. 215.

Properly construing these quotations and other portions of the opinion from which they are taken, it does not seem to me, there can be any doubt as to their meaning or any question as to the soundness of the legal proposition therein announced.

The following extracts from Cooley on Torts, which contain the law as deduced from numerous decisions, fully sustain the rule laid down in the Washington case by this Court:

" The question broadly stated must be, whether, in the infinite variety of human transactions, the law can say that, as to certain of them, the party charged with a duty was negligent, and as to all others he was not negligent. Manifestly this is impossible. ...