Milton's Administratrix v. Norfolk & Western Railway Co. , 108 Va. 752 ( 1908 )

Harrison, J.,

delivered the opinion of the court.

This action was brought by Lena May Milton, administratrix of her husband, John W. Milton, deceased, against the Norfolk & Western Railway Company, to recover damages for the alleged negligent killing of her intestate by the defendant company. A demurrer to the evidence by the company was sustained, and judgment rendered in its favor. To .that judgment a writ of error was awarded.

There is no merit in the contention made by the defendant company that the evidence delivered at the trial has not been sufficiently certified to this court.

The plaintiff’s intestate was employed by the defendant as fireman upon a train consisting of tender and engine, seven cars — four loaded and three empty — and a caboose. At the time of the accident the engine was running backwards, with the tender in front, the occasion for this method of running the train being that there was no turntable at Riverton, from which point the train returned with a heavier load to Shenandoah. About one mile north of Limeton, on the 25th of June, 1906, the engine and tender left the track, the former going on one side and the latter on the other. The engine turned over, with the result that both the fireman and engineman were killed.

The evidence tended to prove, that this train, with its engine and tender being operated backward, was, at the time of the accident, six hours behind its schedule time, and running, under the circumstances, at a dangerous rate of speed, down grade and around an eight-degree curve; that for 150 or more yards before the point of the accident was reached, the tender was rocking and swaying backward and forward in an nnnsual and dangerous manner; that the train, equipped as it was, could have been stopped after the unusual rocking was first seen and before the engine came to the point where it jumped the track. The evidence further tends to prove, that the accident resulted from the train being run with the engine and tender operated backward; and that an engine is more likely to fly the track running backward, as this was, than if run in the usual and ordinary way.

The rule governing courts in considering a case where there is a demurrer to the evidence has been so frequently and clearly stated by this court that it hardly seems necessary to again elaborate that subject. In brief it may be said, that, if upon a demurrer to the evidence, the evidence is such that a jury might have found a verdict for the demurree, the court must so find, and grant judgment in his favor. C. & O. Ry. Co. v. Pierce, 103 Va. 99, 48 S. E. 534; Citizens Bank v. Taylor, 104 Va. 164, 51 S. E. 159; Johnston v. Moore Lime Co., 104 Va. 650, 52 S. E. 360; Lane Bros. v. Bott, 104 Va. 615, 52 S. E. 258. And, further, where reasonably fair-minded men might differ about a question, such question must be decided against the demurrant on a demurrer to the evidence. Bass v. Norfolk, &c. R. Co., 100 Va. 1, 40 S. E. 100.

A circumstantial review of the evidence in this case would serve no good purpose. It is enough to say of it that, under the rule adverted to, the evidence and the inferences which might have been drawn from it, are quite sufficient to have warranted the jury in finding that the defendant company was guilty of negligence, and that such negligence caused the death of plaintiff’s intestate, without fault on his part.

Upon all the facts and circumstances of the case, considered as on a demurrer to the evidence, we cannot say, as a matter of law, that the injury complained of was not more naturally to be attributed to the negligence of the defendant than to any other cause. A plaintiff in an action to recover damages for personal injuries is no more required to prove his case beyond a reasonable doubt than in any other civil action. All that he is required to do to make out a prima facie case is, to make it. appear to be more probable that the injury was the proximate result of the defendant’s negligence than any other cause. Wood v. Southern Ry. Co., 104 Va. 650, 52 S. E. 371.

This conclusion makes it unnecessary to consider other grounds of error assigned in the petition to this court.

Eor these reasons, the judgment complained of must be reversed, the demurrer to the evidence overruled, and judgment entered here in favor of the plaintiff for the damages ascertained by the verdict of the jury.

Reversed.