Kay v. Director General of Railroads , 86 W. Va. 93 ( 1920 )

Poeeenbagee, Judge :

This writ of error goes to a judgment rendered in an action for recovery of damages for alleged negligent killing of a steer and injury to another. The defendant allowed the case to go to the jury, without defénsive evidence, on the theory of insufficiency of the plaintiff’s evidence to sustain a verdict. It moved to strike out the evidence adduced, and, its motion having been overruled and a verdict found for the plaintiff, it attacked the verdict'by a motion to set aside, which the court overruled.

If there were any eyewitnesses to the collision between the train and tire cattle, they were servants of the defendant in charge of the train at the time, and their testimony was not taken. The accident occurred in the night time and the owner of the cattle seems not to have discovered the injury until the next morning. The steers are supposed to have passed from plaintiff’s enclosure through a division fence, to premises of a neighbor, and thence to the railroad property. Their hoof-prints on the railroad indicate that they traveled about 200 feet thereon, in the direction in which the train ran, before they were struck. Their bodies were found on opposite sides of the track, but not at the same place, on an admittedly straight stretch of the railroad, and not more than 200 or 300 feet from a point at which the approaching train had come around a curve in the road, on the extent and character of which, as well as the nature of the ground and the time of the occurrence, the right of the case depends. In the day time, the cattle would have been visible for a distance amply sufficient for avoidance of injury by discovery and stopping of the train, for the ground was smooth and the view unobstructed. If the track had been straight, the headlight would probably have disclosed their presence at night, in time to have saved them. Plaintiff and his witnesses admitted the existence and proximity of the curve, but he and one of his witnesses said it was very slight. He swore he thought it was not sufficient to prevent the rays from the headlight from falling on the track, nor to take them from the track at any point. The other witness described it as follows: “There is a little bit of a curve; it is so little that it don’t show; you can’t hardly detect it in the side of the track.”

Duty on the part of the defendant, to maintain a lookout for animals trespassing on its track, at night, is not denied, nor could it be consistently with law. Hanger Bros. v. C. & O. Railway Co., 70 W. Va. 215; Alabama etc. R. Co. v. Jones, 71 Ala. 487; Louisville etc. R. Co. v. Melton, 2 Lea. (Tenn.) 262; Jonesboro etc. R. Co. v. Guest, (Ark.) 99 S. W. 71; Elliott, Railroads, sec. 1205. The theory of a sudden entry of the animals upon the track, in front of the train, which, if sustained by positive evidence or presumption, would class the case with Harvey C. & C. Co. v. C. & O. Railway Co., 69 W. Va. 228; Lovejoy v. C. & O. Railway Co., 41 W. Va. 693, and Toudy v. N. & W. Railway Co., 38 W. Va. 694, is negatived and excluded by facts tending to prove they had been on the track for several minutes before they were struck.

Lack of direct and positive evidence of the killing of, and injury to, the cattle by one of the defendant’s trains, did not preclude a finding of that fact by the jury, for reasons so obvious that it is really unnecessary to ' state them. Circumstantial ■evidence, with or without the aid of common knowledge available to juries as well as the courts, supplies lack of direct proof in cases of this kind. Underwood v. C. & O. Railway Co., 78 W. Va. 409; Gould v. Coal and Coke R. Co., 74 W. Va. 8, impliedly asserting the proposition. It is manifestly immaterial whether the injury was occasioned by a passenger train, a freight train or a work train. The duty to maintain a lookout and to have the engines equipped with suitable headlights is imposed upon railroad companies in respect of all of their trains. The character of the ground and track and other facts the jury were warranted in finding from the evidence, justified the further findings, in the absence of proof to the contrary, that •a proper lookout was not maintained and that the failure to maintain it was the proximate cause of the injury. The authorities relied upon in resistance of this conclusion are not inconsistent with it. In Gould v. Coal & Coke Ry. Co., cited there was evidence tending to prove the horse had hurt itself in crossing a trestle, and, besides, the evidence of the trainmen, swearing they had not seen it at all, tended to repel the -inference of négligence arising from the circumstances. In Bower v. Virginian Railway Co., 72 W. Va. 737, there was positive evidence, uncontradicted by anything more than mere surmise, that all possible means were adopted to prevent the injury, after discovery of the danger. In McCreary v. C. & O. Railway Co., 77 W. Va. 305, there was no clear proof that a lookout would have availed. The horse could have been seen only through a tunnel which the sole witness for the plaintiff impliedly admitted was sometimes filled with smoke. Besides, the engineer swore he eonld not see through it, on the occasion of the injury, on account of smoke.

Seeing no error in the judgment, we will affirm it.

Affirmed.