Young v. West Va.
| Decision Date | 04 December 1897 |
| Citation | 44 W.Va. 218 |
| Court | West Virginia Supreme Court |
| Parties | Young v. West Virginia & P. R. Co.(Brannon, Judge, concurring.)(English, President, dissenting.) |
The verdict of a jury will be held sacred by this Court, unless there is a plain preponderance of credible evidence against it, evincing-a miscarriage of justice from some cause, such as prejudice, bias, undue influence, misconduct, oversight, or misconception of the facts or law.
The jury is the sole judge of the credibility of contradictingwitnesses, and of the weight to be given to their testimony.
Error to Circuit Court, Harrison County.
Suit by Lavernia E. Young-, as administratrix of the estate of E. L. Young-, deceased, ag-ainst the West Virginia & Pittsburg Railroad Company, to recover damages. Plaintiff had judgment, and defendant brings error.
A firmed.
John Bassel and John Bkannon, for plaintiff in error.
Davis & Davis, for defendant in error.
The West Virginia & Pittsburg Railroad Company obtained a writ of error to the judgment of the circuit court of Harrison county confirming the judgment of a justice of the peace in favor of Lavernia E. Young, administratrix, for the sum of one hundred and twenty dollars. The only error relied on is that the verdict of the jury was contrary to the law and the evidence. The plaintiff's intestate and his horse were killed, and his buggy was badly damaged, at a crossing in the county of Harrison, a few miles from Clarksburg. This suit was to recover the damages occasioned by the loss of the horse and injury to the buggy. The negligence insisted on against the company was that the train was running one hour late, at an unusual speed, and the engineer and fireman were negligent in not keeping a proper lookout at this known to be dangerous crossing, and in not giving the proper signals required by statute. The defense was contributory negligence on the part of the deceased. The evidence of numerous witnesses was taken, which is plainly conflicting as to whether the signals were given, while all the circumstances show that a proper lookout for this crossing was not being kept. The fireman testifies that the deceased, on seeing the train coming, whipped up his horse, and endeavored to cross ahead of the train, while there are some facts and circumstances tending to contradict him, and the jury hearing his evidence and seeing him testify refused to credit his statement. In the absence of the deceased, the evidence being so conflicting, and dependent to some extent on the manner, bearing, and conduct of the witnesses, this Court is unable to say that the jury did not properly weigh the evidence, and fairly determine the credibility of the witnesses. It is therefore impossible to hold that the evidence manifestly and decidedly preponderates against the verdict. As to questions of fact dependent on oral testimony, the verdict of a jury is entitled to great consideration and weight, and it should no1 be lightly set aside because the evidence, as contained in the record, may apparently, in comparing the number of witnesses, be against the finding, for there are many things besides the testimony of the witnesses as taken down by a reporter that the jury is permitted to consider, and of such character that they cannot be made to appear in the record for the inspection of this Court. Akers v. Dewilt, 41 W. Va. 229, (23 S. E. 669); Sislerv. Shaffer, 43 W. Va. 769, (28 S. E. 721). In accordance with the former rulings of this Court in similar cases, the judgment is affirmed.
I agree with Judge Dent in the foregoing opinion. I write this note to say that I think the similar case of Railroad Co. v. Bryants Adm's (Sept. 23, 1897) 28 S. E. 183, which has met my eye since our decision, strongly sustains us, as an appellate tribunal, in regarding ourselves controlled by the verdict. If injustice has been done, it rests not upon our consciences. If Young did, after seeing the train, attempt to drive over the track, he could not ought not recover, but the jury refused to credit the witness who gave evidence that Young did so, and we cannot reverse the jury on a fact dependent purely on credibility of a witness. Again if, the whistle was blown, the company was guilty of no negligence. The jury has found under evidence pro and con on the question that the whistle was not blown, and we are asked to ignore the verdict on a mere question of fact involving inferences and deductions from the evidence, and largely the credibility of witnesses, matters peculiarly within the province of a jury. Since our decision a question has more pointedly pressed upon my mind than it did at that time, and it is this: the relative situation of railroad and turnpike with reference to each other is such that it may be plausibly asserted that Young-could have both seen and heard the train, and should have looked and listened, as the law and his personal safety demanded, even if the whistle was not sounded, and if he failed to do so was guilty of contributory negligence. 1 Shear. & R. Neg. §469, states the law to be that: "When a human being has been injured at a railroad crossing, there is a reasonable presumption that the warning conveyed by the sound of a bell or whistle would have been beneficial to him; but if, without these signals, he knew, or by the exercise of ordinary care would have known, of the proximity and approach of the train, this presumption is rebutted; and, without further evidence connecting the omission of signals with the injury, the company is not responsible for it on that ground alone." This is sound law beyond question. The only perplexing question in this case to me, on the application for rehearing", is, if it is plausible to say that Young could, by ordinary care, have seen and heard the train, and there is no evidence whether he did or did not look and listen, what ought an apellate court to do? Ought it to overthrow the verdict, or say that the question whether Young did look and listen is a jury question, under all the facts and circumstances? All authorities agree that the question of contributory negligence is a jury question. Sheff v. Huntington, 16 W. Va. 307. When it is so plain from the evidence that all reasonable men must draw the same conclusion, where there is no room for two opinions, it is a question of law for the court; but, where reasonable men may differ about it, it is for the jury. Raines v. Railway Co., 39 W. Va. 50, (19 S. E. 565). In note to Beach, Contrib. Neg. 3182, it is laid down: "Where there is no evidence that the party injured stopped and listened, the court will not presume that he did not stop, and-adjudge him guilty of negligence, but will leave the question to the jury. "Indeed McBride v. Railroad Co., 19 Or. 64, (23 P. 814) holds that, in absence of evidence, the presumption is that the traveler looked and listened. So in Railroad Co. v. Weber, 18 Am. Rep. 407.
A careful reconsideration brings me to the same conclusion I held when the case was first presented to me; that is that as an appellate court we cannot disturb the verdict. Thus we see, in this instance, as in many others, how very important is the function of juries in our courts. Bitter complaint is often made at the bar of the courts of their prejudice against corporations. We should be slow to believe this impeachment. Juries are trusted and regarded with special favor by the law over a single judge, because they are composed of a number of men carefully selected from among the people as plain, solid, intelligent, and honorable men, free from personal or political bias, and without individual ends to accomplish; and these framers of the jury system thought that through a jury the rights of all suitors of every class would be best defended, and all stand equal before the law. Corporations are lawful suitors, entitled to equal and exact justice at the hands of the courts and juries; no more, no less. If juries do not do justice, and deliver unrighteous judgment, often we cannot help it, for we must deal sparingly and cautiously with their verdicts when dependent solely on the evidence. This case turns on evidence, not on law questions.
English, President, (dissenting):
I cannot concur in the forgoing opinion for the following reasons: On the 5th day of September, 1896, an action was brought before a justice of the peace of Harrison county by Lavernia E. Young, administratrix of the estate of E. E. Young, deceased, against the West Virginia & Pittsburg Railroad Company. The case was submitted to a jury, which rendered a verdict in favor of the plaintiff for one hundred and twenty dollars. The defendent moved to set aside the verdict of the jury and award it a newtrial, which motion was overruled, and the defendant excepted, and took a bill of exceptions in which said justice certified all the evidence heard on the trial, and rendered a judgment on said verdict on October 26, 1896, for one hundred and twenty dollars with interest from that day, and for thirty nine dollars and forty five-cents costs. The defendant thereupon applied for and obtained a writ of certiorari to such proceedings and judgment from the circuit court of said county, and upon the hearing of said writ of certiorari the judgment rendered by said justice was affirmed, with costs against the piaintiff in error, and thereupon it applied for and obtained this writ of error.
The facts upon which this action was predicated are, briefly stated, as follows: The husband of the plaintiff was riding in a buggy along the public road in said county of Harrison, which road ran parallel with and near to defendant's railroad. He was approaching a public crossing, and a passenger train on the railroad was also approaching the crossing in the same direction that the buggy was g-oing. The plaintiff's intestate, in...
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