Young v. West Virginia & P. R. , 44 W. Va. 218 ( 1897 )

Brannon, Judge,

(concurring):

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. Bryant's Adm'rs (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 g-ave evidence that Young did so, and we cannot reverse the jury on a fact dependent purely on credibility of a witness. Ag-ain if, the whistle was blown, the company was guilty of no neglig'ence. 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, Con-trib. 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 Pac. 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 rig'hts 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.