White v. Southern Ry. Co.

• Decision Date: 20 September 1928
• Citation: 151 Va. 302
• Parties: E. T. WHITE v. SOUTHERN RAILWAY COMPANY.
• Court: Virginia Supreme Court

Page 302

151 Va. 302

E. T. WHITE v. SOUTHERN RAILWAY COMPANY.

Supreme Court of Virginia, Staunton.

September 20, 1928.

1. CROSSINGS — Signals at Crossings — Positive and Negative Testimony as to whether Signals were Civen — Case at Bar. — The instant case arose out of a collision between defendant's train and plaintiff's automobile at a railroad crossing. Plaintiff and two other witnesses testified that they did not hear the crossing signals at the time of the accident. From plaintiff's evidence it did not appear that he was listening for the signals but that he was depending upon his eyes and familiarity with the crossing to avoid the danger. Moreover, plaintiff was not in as good a position to hear the signals as if he had not been in the automobile with the negine running. The other two witnesses were laborers working in a barrel factory and the machinery of the factory was in operation at the time of the accident. They both said that their attention was not attracted to the matter at all until the crash. They were paying no attention to the train until after the occurrence. They did not even say that they generally heard the train or bell. On the other hand, defendant introduced six witnesses, who were on the train at the time of the accident, whose testimony showed affirmatively that the required signals were sounded.

Held: That defendant's positive evidence established the fact that the signals were given and that plaintiff's negative evidence was not sufficient to carry the question to the jury.

2. EVIDENCE — Positive and Negative Evidence — General Rule. — The positive testimony of a single witness, whose credibility is unimpeached, that he saw or heard a particular thing at a particular time and place, ought ordinarily to outweigh that of a number of equally credible witnesses, who, with the same opportunities, testify that they did not see nor hear it. In such case, the evidence of the one witness is positive, while that of the many is merely negative.

3. EVIDENCE — Positive and Negative Evidence — Where Witness who Denies a Fact had as Good Opportunity to See or Hear it as He who Affirms it. — But where a witness, who denies a fact in question, had as good opportunity to see or hear it as he who affirms it, and his attention, because of special circumstances, was equally drawn to the matter controverted, the general rule that the witness who affirms a fact is to be believed rather than he who denies it does not hold good. The denial of the one in such case constitutes positive evidence as well as the affirmance of the other, and produces a conflict of testimony.

4. EVIDENCE — Positive and Negative Evidence — Attention of Witness — Negative Testimony and Quasi-Negative Testimony. — The testimony of a witness who does not deny but merely states that he did not know of, or has no recollection of an occurrence, is not of the same probative value as the testimony of a witness that he was giving attention and that no such occurrence took place. The distinction is between the two classes of testimony, respectively, negative testimony and quasi-negative testimony.

5. EVIDENCE — Positive and Negative Evidence — Where a Positive Witness would be Guilty of Perjury, while a Negative Witness might be Honestly Mistaken. — Wherever it can be perceived that positive witness is guilty of perjury unless his statement is true, while a negative witness may be honestly mistaken, the issue should be found in favor of the former if the witnesses are of equal credibility. Negative testimony proper is entitled to no weight.

6. VIDENCE — Positive and Negative Evidence — Conflicting Evidence. — If a credible witness with apparently adequate opportunity for observation testifies to an occurence, no conflict arises by the testimony of other witnesses that they were not cognizant of the occurrence, where the latter witnesses' opportunities for observation are not stated, or where they probably would not have observed the event if it had occurred, or where their opportunities were not coextensive with those of the positive witnesses.

7. EVIDENCE — Positive and Negative Evidence — Quasi-Negative Evidence. — Where a witness affirms that a fact occurred, and another who had apparently sufficient opportunity to know and who declares he was paying attention, denies that it occurred, it is generally held not to be a case of positive and negative testimony, but of positive testimony on both sides.

8. CROSSINGS — Duty to Listen on Approaching — Burden of Proof Upon Plaintiff — Case at Bar. — The instant case arose out of a collision between defendant's railroad train and plaintiff's automobile. Plaintiff's evidence showed that he was not listening for the train signals when he approached the crossing, but was relying on his eyes and familiarity with the locality to avoid danger. Whether or not plaintiff could have heard the signals if he had been listening was questionable.

Held: That the burden was upon plaintiff to show both that he was listening, and that, if listening, he could probably have heard, and this burden he had not carried.

9. QUESTIONS OF LAW AND FACT — Conflicts in the Evidence. — Substantial conflicts in testimony must be submitted to a jury, but where there is no real conflict, juries should decide questions of fact in accordance with the testimony submitted.

10. CROSSINGS — Action for Injury at Crossings — Negligence of Defendant in Failing to Sound Statutory Signals — Burden of Proof and Preponderance of Evidence. — The instant case was an action by plaintiff for injuries incurred in a crossing accident. Plaintiff relied on the failure of defendant to sound the crossing signals. It was essential to plaintiff that he establish the negligence of defendant in failing to sound the statutory signals by a preponderance of the evidence. All that he testified to was that he did not hear the signals, whereas defendant's witnesses positively testified that the signals were given.

Held: That plaintiff had clearly failed to show by a preponderance of the evidence that defendant failed to give the signals, whereas defendant had shown without substantial contradiction that these signals were given.

11. PROXIMATE AND REMOTE CAUSE — Crossing Accident — Wet and Slippery Condition of Pavement — Failure to Give Signals — Case at Bar. — In the instant case plaintiff was injured in an automobile accident at a crossing. Plaintiff testified that ordinarily he could have stopped his car in time to save himself, but that the wet and slippery condition of the pavement prevented.

Held: That if the defendant failed to sound the statutory signals, and if this failure in any way contributed to the plaintiff's injury, then defendant would be liable, because the mere condition of the street would never alone have resulted in plaintiff's injury as a new effective cause thereof, operating independently of anything else.

12. CROSSINGS — Proximate and Remote Cause — Failure to Give Signals — Causal Connection between Failure to Give Signals and the Accident. — While causal connection between the defendant's failure to sound the statutory signals, if proven, and the plaintiff's injury may frequently be inferred from the circumstances, there must be causal connection to support a recovery.

13. PROXIMATE AND REMOTE CAUSE — Concurring or Intervening Cause — Defendant Liable Notwithstanding Concurring or Intervening Cause. — If the damage is caused by the concurring force of the defendant's negligence and some other cause for which he is not responsible, including the "act of God," or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage.

14. PROXIMATE AND REMOTE CAUSE — Concurring or Intervening Cause — Defendant Liable Notwithstanding Concurring or Intervening Cause. — If the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff's damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage.

15. PROXIMATE AND REMOTE CAUSE — Concurring or Intervening Cause — Defendant not Liable where Concurring or Intervening Cause would have Produced the Same Damage. — Where a concurring or intervening cause for which defendant was not responsible would have produced the same damage, whether defendant had been negligent or not, its negligence is not deemed the cause of the injury.

Error to a judgment of the Circuit Court of Norfolk county in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

A. B. Carney and Wm. G. Maupin, for the plaintiff in error.

Thomas B. Gay and W. L. Williams, for the defendant in error.

PRENTIS, C.J., delivered the opinion of the court.

E. T. White, driving his own automobile, a closed Ford sedan, was struck at a railroad crossing by a train of the Southern Railway Company and injured. He sued, alleging negligence, relying upon the allegation that the crossing signals required by statute were not given. There was a jury trial, a verdict for the plaintiff which the trial court set aside, and then entered final judgment in favor of the defendant company, of which the plaintiff is here complaining.

The trial court judge gave these as the reasons for his judgment:

"The defendant, against whom a verdict has been returned, seeks to have it set aside on two grounds:

"1. That the statutory signals had been given and the defendant is free from negligence.

"The plaintiff's evidence on this point is so plainly negative that to give it any effect is to abrogate the rule with reference to this class of testimony.

"2. ...