Suphfmf COURT of APPEALS of VIRGINIA at RICHMOND

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IN TilE.

SUPHfMf COURT OF APPEALS OF VIRGINIA AT RICHMOND

THE VIRGINIAN RAILWAY CO., A CORPORATION

WILLIAM M. UNDERWOOD, ADMINISTRATOR OF LEATHA UNDERWOOD, DECEASED

PETITION OF WILLIAM M. UNDERWOOD, ADMIN ISTRATOR, ETC., TO RE-HEAR

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IN 11IB. SUPREME COURT Of APPEALS Of VIRGINIA AT RICHMOND

THE VIRGINIAN RAILWAY CO., A CORPORATION. v.

WILLIAM M. UNDERWOOD, ADMINISTRATOR OF LEATHA UNDERWOOD, DECEASED

PETITION O·F WILLIAM M. UNDERWOOD, ADMIN ISTRATOR, ETC., TO RE-HEAR

To the Horwrable Chief Justice and tke Associate Justices of the Supreme Court of Appeals of Virginia:

Your petitioner, W. M. Underwood, administrator of Leatha Underwood, deceased, respectfully represents unto your Honors that he is greatly aggrieved by a judgment of ---·-----.~--~ ---.,.-~-.-:---.,- ·- ·&

[2]

this· court rendered in ;the wbove entitled cause at Richmond on the 17th day of January, 1929, and he hereby respect- ! • fully petitions your Honors to grant him a· re-hearing in said matter. Petitiorler will be hereinafter referred to as the plaintiff, and the ~ppellant as the defendant, since they occupied these positions, respectively, in the lower court. The negligence of the Railway Company. was conceded in the oral argument a~d the sole question to~ be determined by the court was wh~ther the driver of the car in which the plaintiff's intestate was riding was guilty of contribu tory negligence. This issue was resolved by the jury in favor of the plaintiff, ·and, the trial court, after mature consideration, rendered judgment on th~ verdict of the jury. This court reversed the judgment of the trial court and entered judgment for the defendant. In the concluding paragraph of the opinion, it is. said: "There is but one satisfactory conclusion which I can be reached in this case, and that is that the I contributory rtegligence of the plaintiff's intestate was the p~oxiinate cause of the accident." The court evidently; meant the contnoutory negligence of the driver of the car~ and we shall discuss the case upon that assumption, sine~ there is not a sctntilla. of evidence in the record to show any contributory negligence on the part of the plaintiff's intestate, unless the· simple fact that she was asleep at the tim~ of the accident constitutes contri•bu• tory negligence as a matter of law. We submit that this

is not the law. The ! only reported case, of which we are aware, that squarely' decides this point, is Chesapeake & Potomac Telephone Co. v. Merriken, 147 Md. 572, 128 Atl. 277, 41 A. L. R. 763~ In that case the driver of the car <.

[3] failed to take a curve in the road ~nd skidded into a guy pole of tlte Telephone Co~p~ny, wJrlch was ~liege~ to be too close to the highway. The plaintiff was asleep at the time of the accident. It was claimed by the defendant that this fact alone constituted contributory negligence.· In passing upon this issue, the court said: ·

"T~e real questjQn presente~ by tlte appeal, how ev~r, is ~~ised by the refusal of the defen~ant's first and second prayers, and it is this: Was the plain tiff guilty of contributory neg}igence as a matter of law (a) because he fell as~eep, or (b) because he did not ·before he fell asleep warn the driver of the car in which he was riding of the dangerous curve? "To justify a court jn characterizing conduct as neglige~t in law, it mu!St ~nvolve some 'prominent a11d ~ec~sive act, i~ regard to the effect a11d char acter of which no room is left for ordinary minds to differ.' WoJ,tring v. James, 136 Md. 414, 111.Atl. 126. The ingredie~ts of contributory negligence do not differ in any respect from those of primary neg ligence ; it is after all 'like primary negligence, rela tive and not ~absolute, and being relative it is d~ pendent on the peculiar circumstances of each par ticular case. There are many acts which would not be negligent when done under some conditions, though the same acts if done under different condi tions might lbe highly negligent. And this is equally true of contributory negligence. So, ultimately, in every case of this character it becomes necessary to view the entire surroundings to determine whether either primary or contributory negligence has been I I [' J

i established.' McNab v. United R. & Electric Co., 94 Md. 724, 51! Atl. 421, 11 Am. Neg. Rep. 240. I "These prili!ciples have been so often and so recently stated ~Y this court that it is unnecessary to do more than ~efer to Merrifiel~ v. Hof/berger Co., No. 52, Octob~r term, 1924,- Md. -, 1'27 Atl. 500, and Pearsoo vl Lalcln, No. 28, id.- Md. -, 127 Atl. 387, in whichi Judge Digges and Judge Parke, re spectively, sp~aking for this court collected and re viewed the later decisions involving them. I "Applying these principles to the facts of this case, the defezidant's first and second prayers were properly refu~ed. It cannot be said as a matter of law that the plaintiff was guilty of negligence di rectly contribiiting to the accident merely because 'he was asleep !at the time it happened, although the jury were entitled to consider that circumstance in passing upon ~he question of his negligence together with the othet circumstances of the case."

In reversing the tr~al court and setting aside the verdict of the jury on the ~ssue of contributory negligence, the plaintiff respectively ~ubmits, with great deference to the I views of this Honoratble Court, yet, with earnestness and sincerity, that this co~rt departed from the long established rule that a verdict o~ conflicting evidence is conclusive on appeal. :· I I In Chesapeake & 'Pelepkone Co. v. Merriken, supra, the court sa1•d : I~ . "Many of these facts were disputed and were con tradicted by other testimony. For instance there [5]

was eviden~e that the pole was not in the traveled way of the road; that when Lee approached the curve he was driving at from 30 to 35 miles an hour, and that at the center of the curve there was placed as a warning of danger a striped post referred to as a barber pole. But, as it was the exclusive ·function of the jury to resolve that conflict, it is unnecessary for us to refer further to it."

What is there said, is applicable here. Indeed, not only was every fact or contention, urged by the defendant on the .issue of contributory negligence, disputed and contra dicted by testimony of the plaintiff and physical facts-the overwhelming weight of the testimony on every contention of the defendant on this issue is with the plaintiff. It has been held by this court, almost from time immemorial, that the finding of the jury for the plaintiff is conclusive in favor of the plaintiff's theory as to how the accident hap pened; that when a jury resolves confliets in the evidence in- favor of the plaintiff, this court is concluded by their verdict.

In the case of Kelly v. SckeneUer, 139. S. E. 275, opinion by Judge Campbefl, it is said:

"While conceding that the evidence is conflicting, it is urged upon us by counsel that the conflict in the testimony of the witnesses is controlled thy cer tain physical facts disclosed by· the evidence. The physical facts relied on are the tracks of the auto mobiles made. upon the highway at and near the place of the accident. -The evidence of the witnesses tal

who testifieout evidence to support it."

In Virginian Railway Company v. London, 139 S. E. 828, decided by this court, Se:ptember 22, 1927, it was held, points 3 and 7 of the syllabus, as follows:

''Where eonfticts in evidenee eXist and a verdict is rendered for plrdntiif, tiie jury's verdict Will he considered as establishing the contention of the plaintiff With ·reference to sueh corifliet. ''Where a jury had a right to draw conclusions as to cause. of the fire which destroyed plaintiff's ·barn, reviewing court could not set aside the ver dict, whatever the weight of the evidence.f' In Waskington & Old Dominion Railway Comfto/li,y v. Weekley, 125 S. E. 672, Judge Christian, of the Special dbutt of Appeals, said: ·

"(1) Upon the trial there was a sharp conffict iii the testimony as to the cause of the injury. The plaintiff testified that he was standing on the track, Bagging the on-coining pasenger train, when the ihilk train upon which he 'Was em:Pioyed came up beliinci hiitl, knocked him cioWJ1, and ran over his leg and cut it aft. Tile defeiuiant*s testimony tend ed to prove that frOm. the physicai surroiliidings it was impossible for the injury, to have happened as [7]

the plaintiff claimed. Peterson, the motorman of the pasenger train, the only eye witness of the oc currence, testified that he saw the plaintiff cross the track about 40 feet in front of the milk train, and when he had gotten into the middle of the track;. or near the west rail, he stumbled and fell, where upon he undertook to protect himself from the on~ coming milk train which was moving at the rate of five or six miles an hour, and that he succeeded in getting all of his body outside of the rails but his leg, which was caught under the wheels of the motor car and cut off. The verdict of the jury is conclu sive in favor of the plaintiff's theory of the case, and iw the consideratum of the case the court must assume thtd tke facts established by the plaintiff's ~ "- dence are t~. Keeping in mind this well-estab lished rule of law, let us examine carefully the facts of the case from the standpoint of the plaintiff's evidence to determine whether he is legally entitled to the judgment of the court upon the verdict."

Let us here remind the court that, according to the estab lished rule in this state, laid down in numerous cases, of which C. & 0. Ry. Oo•. v. Baker, 148 S. E. 299, is among the latest, this court must consider this case as upon a re murrer to the evidence; that in thus considering it, the truth of the p"kLintiir 8 evide1ice is admitted; and all just inferences that can properly be drawn therefrom by the iUrt~ The Railway Company wa'Uies all of itl! own evidence whiclb ClmfUcts 'Witk that of the pmintifj, and all inferences from its owil evidence (although not in conflict with the plaintiff's) which do not necessarily result therefrom. If there is a CODftiet of testimony oil a material point, or, if [ 8]

reasonably fair-minded men may differ_ as to the conclusion of fact to be drawn from the evidence, or if the conclusion is dependent upon the weight to be given the t~stimony, in all such cases, the verdict of the jury is absolutely final, and conclusive, and cannot be disturbed by this court. Forbes v. Southe'rn Cotton Ry. Co., 130 Va. 245, 108 S. E. 115. This doctrine is established in Virginia by an unbroken line of decisions. Clearly, we are only concerned here with the· question as to whether tke evidence of the plaintiff accepted by the jury is sufficient to support the verdict. In the language of Judge Christian, in Wasking & Old Dominion Ry Co. v. Weekly, supra, "keeping in mind. this well established rule of law, let us examine carefully the facts. of the case ·from the standpoint of- the plaintiff's evi dence to determine whether he is legally entitled to the judgment of the court upon the verdict." Although counsel for the railway company conceded in the oral argument that the railway company was guilty of actionable negligence in the ·premises, and the court, in its opinion so holds, nevertheless, the ·court goes back to the question of primary negligence, and quotes the following paragraph from the case of C. & 0. Ry.: Co. v. Heath, 103 Va. 66; Washington & Old Dominion Ry Co. v. Zell, 118 Va. 775:

"In C. & 0. Ry. Co. v. Heath, 103 Va. 66, it is said: " 'The party who affirms negligence must estab lish it by proof sufficient to satisfy reasonable and well balanced minds, the evidence must show more than a pro·bability of a negligent act. An infer ence cannot be drawn from a presumption, but

'------. [ 9]

must_ be founded upon S'()me fact legally established. This court has repeatedly. held that when liability depends upon carelessness or fault of a person, or his agents, the right of recovery depends upon the same being shown iby competent evidence, and it is incumbent upon such a plaintiff to fur!lish evi dence to show how and why the accident occurred -some fact or facts by which it can be determined by the jury, and not be left entirely to conjecture, guess or random judgment, upon mere supposition without a single known fact.' " . Then says the court, with reference to the instant case: "Whether the negligent act of the defendant in failing to properly guard the approach to the bridge -was the sole or even a contributing cause of the acci dent is a; matter of' pure conjecture." Immediately following the language last quoted, the opin ion summarizes the facts as follows: "In Virginian Ry. Co. v. Fa1-r, supra, relied upon by plaintiff, there was affirmative evidence that the county road, which existed prior to the construction of the railroad, was changed by the railway com pany, and that the railroad company excavated its cut across the location of an existing road. It was also shown that the road made practically a right angle turn and that the physical condition of the ground at that point was such that one driving along the road would not observe that the road made a turn on account of the fact that the land was free of underbrush and presented the appearance of be ing a continuation of the road. It also appeared

'·· [10] from direct evidence that the driver, in possession of his faculties, was driving the car slowly and care fully. The circumstantial evidence in the instant case is to the effect that the car immediately before the accident was ·being driven at a rapid rate of speed. The driver of the car was addicted to the use of intoxicants, and an escaped felon on his way to aid in the escape of the husband of the deceased, who was then confined in jail. The curve in the road just before reaching the bridge was a curve of only 82-20 degrees. The bridge had a guard rail on each side composed of three board planks which were discernable for a distance of 840 feet. At the end of the bridge there was a brace which was 6 inches wide, 2 inches thick atici fastened to the bridge by boat spikes. This barrier Withotii doubt could be discerned at least 80 feet from the bridge. It also appears that there was a ditch or depression at the side of the road which was ten inches deep at a dis tance of 78 feet from the bridge. At a distance of 15 feet from the 'bridge the depth was about 2 feet. While some of the witnesses for the plai~tiff state that they did not see a car track in this ditch, we think it is conclusively shown by affirmative evi dence that the automobile of the deceased ran into this ditch or depression for a distance of 78 feet before it struck tlie bridge and was precipitated into the railroad cut. Tiit! -phySical facts show that as Rakes approached tbe bridge, he drove the car off the beaten path and through woods and bushes a11out a foot higb. That the car was ririining at a rapid rate of speed is, we thiilk, demonstrated by [11]

the result both to the ear and the bridge at the point of the accident. The automobile driven by Rakes was a light Chevrolet. As a result of the ear strik ing the end of the bridge, a heavy 2x4 upright post fastened by spikes was knocked loose from its fast enings, the stanchion: at the end of the bridge was ·broken and the left wheel of the ear was shattered. - - These are physical facts which need no bolstering 1 arguments to uphold them. '

We submit, with the greatest respect, that the record abounds with cred-ible testimony on behalf of the plain tiff ili direct conflict w'ith every mitte'rial a·tatement eon tabled in the foregoing paragrapli. The jury accepted tqis testimony as true, and we most respectfully submit tliat this court eaiiiiot iegally re3eet it, imless such testi mony is iri conflict With physical facts tliat demonstrate its falSitY.

We shall now take up, sentence by sentence, the fore going sununary of facts upon which the court based its conclusions, and quote the testimony in oonflict therewith. We most respectfully ,beg the court to bear patiently with tis while we endeavor, honestly, conscientiously, and sin cerely, with ail the ability at out cOmlnilnd, td present the case exactly as it is shown by the record.

Fi:ist Sentence.

"i:ti VlrlftnidAi RaiiWliill Co. v. FtiH, supra, relied up-on by tile plaintiff, t1iere was affirmative evidence that tile- countY road Wflicli disfed p:dot- to the con struction oi the railroad, was elianged by the Rail- [12]

way Company, ·and that the Railway Oompany ex cavated its cut across the location of an existing road."

The third paragraph of the notice of motion, page 17 of the printed record, reads as follows:

"(3) That on or acbout the - day of --- 19-, at said point, on your right of way in Char lotte County, Virginia, and about two miles south west of Phenix, you or your predecessor, the Tide water Railway Company, to whose rights, privileges, franchises and duties you succeeded, with the con sent of the Board of Supervisiors of Charlotte County, Obtained as above set out, changed the loca tion of the. public highway-which formerly · ran near and at the point of the location of said over head bridge perfectly straight from a point from three to five hundred feet northeast of said over head bridge_ to a point from three to five hundred feet southeast of said bridge across your proposed right of way-whereby the highway as changed by you runs in a westerly direction from a point about four hundred and fifty feet northeast of said bridge, and then at a point within about twenty feet of said •bridge makes an abrupt turn, almost at right angles, crossing your right of way and tracks on an over head .bridge or crossing, at which point there is a deep cut made cby your road bed sixty feet below the /bottom of said bridge or crossing, so that by reason of said change in the highway aforesaid, and the deep cut and overhead crossing constructed by you without taking ordinary precautions or provjding [18]

any warning, guard rails, mounds or any other pro tection, or obstruction at the approaches to said bridge, and especially at the northern end of said bridge, you created an extremely dangerous and hazardous situation, which theretofore had not ex isted, and it thereupon ~became and was your duty to do, construct and operate said crossing so as not to impair, impede, or obstruct such highway, and to operate such crossing by permanent and proper structures and fixtures and control the same by such customary and approved appliances and regulations as would best secure the safe passage and trans portation of persons and property over and along such crossing."

It is, therefore, distinctly alleged in the notice of motion that the county road existed prior to the construction of the railroad; that the same was changed by the railway company, and that the railway company excavated its cut across the location of an existing county road. A motion was made for the particulars of defense, and a statement of the grounds upon which the company would rely in defending the case is found on pages 22 and 23 of the record. There is no denial of negligence, except by a formal plea of not guilty. The statem~nt of the grounds of defense contains no kint .or suggestion of any defense other than that of contriliutory negligence. Although there was a formal plea of not guilty, after the plaintiff . asked for a statement of the grounds of defense, and such a statement was filed, the defense was limited to the specifications, which was contributc(ry ineg'liglence alone. It was distinctly held in Carolina, etc. Ry. Co. v. Clinch Valley Lumber Oo,., 72 S. E. (Va.) 116, and FO/f'mers, etc. [14]

(1(). v. Kinsey, 1Q1 Va. 236, t~t vvh.en the 4efeiJ~Q.nt files a statement of his grounds of defense, his defense wiil be limited to his .specifications. In Big Sandy Ry. Co. v. BaU, 113 S. E. (Va.) 722, the court said, with reference to the effect of the filing of a ~tatement of the grounds of defense "nor could it (re ferring to the defendant) lull him (the plaintiff) into security lby apparently relying upon a different defense." While no "atfirmati.ve evidence" was necessary to show that the county road existed prior to the construction of th~ r~ilr()ad in view of the rules of pleading and practice established by the authorities cited, there wa$, ~n fact, undisputed evidence in the record that th~ county road did exist before the railroad was built, and that its loca tion was changed by the Railway C.ompany. .At pa~~ ~-37 of the .record will be found a ,blue print of a map maqe by Mr. S. P. Daniel, a competent civil engine~r. ·TlijEJ map represented the situation so accurately that the }t~il way Company accepted it in lieu of its own map made by its own engineer. The different roads are indicated o~ the original map by the different colored ink. Thi~ dif"=' ference does not appear in the blue prints. However, if the court will turn to page 43 of the record, it will find where the surveyor indicates the present roadway, t~e old road way before the railroad was built, and the county road before the present improved road was built. We quote from the engineer's testimony as follows:

"Q. Now, will you tell the jury where the p~~s ent ·roadway is and the bridge? "A. The black lines indicate the present road that goe~ along here as I point, toward Aspi11. [15]

"Q. Now, Mr. Daniel, what do the straight black lines indicate on this map? "A. The original road that was used before the road was built. "Q. What do the red lines indicate? "A. The presence of a road that was in use be fore the present improved road was put in-I can't ibe certain, but I see an old road indicated there just where these red lines are."

It will thus be observed that Mr. Daniel indicated the present road on the map by pointing his finger along the black lines that follow the curve in the road as it exists to day. He indicated the original road that was used 'before the railroad was built by the "straight black lines," thus showing that the county road at this point before the rail road was built was perfectly straight. He indicated by the use of the red lines the old road as it was left by the Rail way Company immed~ately after the construction of the bridge and relocation of the highway. This old road re mained in that shape/ until it was improved, and a.part of the curve was taken out. 'fhere was no denial of Mr. Daniel's testimony that the straight black lines on the map indicated the original road before the road (railroad) was ibuilt, and that the original road was perfectly straight at this point. We submit that the jury saw Mr. Daniel testify, and accepted his testi mony; that such testimony was in accordance with a matter of common knowledge, and that the court ought not to be influenced against the plaintiff in the least upon the ground that there was no "affirmative evidence" that the county road existed before the railroad was built. Of course, if [16] the county road existed before the railroad was built, as Mr. Daniel stated, and as it was alleged in the pleadings, and not denied, and the railway company excavated the cut -which was admitted-then it must have excavated the cut across an existing county road. Certainly,. on this motion to set aside the verdict of the jury, which has been approved by the trial court, this court is bound to accept as true the foregoing testimony that the county road was in existence before the railroad was built; that the Railway ·Company changed the location of the county road, and excavated its cut across the road.

Second Sentence

"It was also shown (referring to the Farr Case) that the road made practically a right angle turn and that the physical condition of the ground at that point was such that one driving along the road would not observe that the road made a turn on ac count of the fact that the land was free of under brush and presented the appearance of being a con tinuation of the road."

While, in the instant case, the curve was not a right angle curve, Mr. Daniel, the engineer,.. who is competent to judge of such matters, testified, without objection, page 44 of the record:

"Q. Now, Mr. Daniel, can you describe to the jury the curve right at the edge of the clearing where this car went over? "A. Going in this direction, that is a curve to the left, and it is a pretty' stiff curve, we call it a 32 de- [17]

gree curve-that curve is a 32.20, that is a stiff curve."

With reference to the physical conditions surrounding the place of the accident, and whether they presented the appearance of a continuation of a straight road, we refer to the record as follows: On page 145, will be found photograph number 8, taken 50 feet from the end of the bridge following the turn of the road as it leads to the bridge. This photograph does not show up the actual situation anything like as favorably to the plaintiff as does a view. This is so because the camera was so located as to show the distance between the fence post to the right of. the bridge, and the right bridge post to be greater than the distance between the right and the left bridge post, whereas, in fact, by actual measurement, the distance between the fence post and the right bridge post is wider than the distance between the two bridge posts. The surveyor, on page 44 of the record testified as follows:

"Q. What is the distance to that bridge pole (fence post) from the right corner of the bridge? "A. 18.2 feet. "Q. What is the width of the bridge at that point? "A. The used portion of the bridge is 17 feet. "Q. What did you say the used porti<>n of the bridge is? "A. 17 feet and two 6-inch guard rails makes it 18 feet from post to post."

It wiil thus be observed that the two bridge posts are ex- l 18 ] actly 18 feet apart "from post to post," whereas, the right bridge post, and the fence post in question are 18 and 2/10 feet apart. Now, look at the photograph number 8, on page 145 of the record again, and any one can observe by the naked eye that according to the situation there shown, the distance ·between the right bridge post and the fence post is only about half the distance between the two bridge posts. The same error exists in the degree of curve, as evidenced by the photograph. This demonstrates, beyond. the peradventure of a doubt, the fact that photographs can never be relied upon to accurately present true situations with respect to the objects photographed and their relation to each other. In taking a scene on the ground, much de .. pends upon exactly where the camera is located, and how it. is focused. Had the camera been focused between the fence post and the right bridge post, and placed closer to the scene, it would have shown the distance between those two posts to be much wider. It would also have shown a much stiffer curve. Indeed, the camera mig~t have Qeen so placed an~ focused as to. show the distance between the fence post and the right bridge post to be wider than the distance between the two bridge posts. It might have also been so placed as to show a right angle curve in the road. But the pictures were taken by the claim agent of the Rail way Company and he took them in the interest of the com pany. Photograph number 8 does not even show all of the curve in the road. It does show where the car went off. The exact point is indicated by a mark about midway be tween the fence post and the bridge post. The photograph also shows a total absence of underbrush, weeds, etc., wh~re the car went over. · With reference to whether physical conditions on the [ 191

ground pointed to a continuation of a straight road, we quote from the testhnony of Mr. Dempsey, page 89 of the r~ord (bottom) :

"Q. Have fOU ever had occasion, since then, to drive along that road at night and stop the car after making the turn to see where the lights shone? ---~- "A. I drove along there to see what could have possibly caused that wreck, and my light- "A. I drove there just purposely to see where my light would be shining at the point of this curve and my Ught focused in the exact direction that this ;fel low took, judging from the tracks. "Q. Where did it focus? "A. Almost between this post that was standing 20 or 25 feet .from the corner of the bridge standing at the point. of the curve about where the car left the road where it started leading off the road. I stopped my car there to see where my light would be."

And on page 121 of the record (top) Mr. A. G. Cross testified:

"Q. Did you get back there at night in a day or two after that? "A. Sometime after that I went back there, I was driving along there and took a little more ob: servation than what I had taken before in reference to where the lights would reflect, at about the place where their car left the road, where they began to swerve to the right. "Q. Where did you stop your car? [20]

"A. I stopped my car, I

And on pages 122 (bottom) and 123 (top) on cross-ex . amination by the Defendant Railway Company, he testified:

"Q. When you stopped your car and made this observation, it was no trouble to see the traveled ·part of the road there, was it? ."A. You could not see the road, you could not see the curve in the road. Your lights would focus straight ahead. "Q. I didn't ask you where your lights would focus, I asked you if there was any trouble in see ing the traveled part of the road when you stopped there and made the observation that you testified to? "A. No, sir, you could not see the traveled part of the road, there was a curve there that you could not see it, you could not see the bridge. "Q. You could not see any part of the traveled road? "A. No, sir. "Q. You could only see between the bridge post and this post that was off to the right of the bridge? [21 1

"A. Yes, sir. "Q. And you could not tell whether the road curved or ran straight on? "A. Judging from the lights and what; you could see there was nothing to indicate a cUrve~ "Q. My question is that you could·. not tell whether the road ran straight or whether th~re was a curve in it? "A. I could by stopping, but if I had been driv ing at a rate of 20 or 25 miles an hour, lprob~bly would have drove with my lights. "Q. And would not have seen the curve in ·the road at all? "A. Not until I got around the curve." (Itali~s supplied). Mr. W. M. Underwood, who appeared to be a perfectly'-.. fair and honest witness, and who was in no way impeached, testified in reference to the physical facts as follows (pages 29, 80, 81, 88, 84, 85 and 87 of the record): (P. 29) : "A. Then I went back to the cut to see what was the cause of the accident. "Q. What did you find in that respect? "A. First I noticed that the car run up some• thing hear about 7 feet of the bridge and seemed like it had made a quick turn to try to get up. "(Counsel for defendant objects and moves to strike out what witness said, 'And seemed like he tried to make a quick turn.') "Court-sustains the objection. [22 1

"(Witness. continues to answer). "A. I noticed the track, first I noticed where it had struck the bridge, the front wheel run inside of the bannister post. "Q. Which front wheel? .(P. 30): "A. The left front wheel. I also noticed that back about seven feet where it made the quick tum also that further back it was going straight on the right band side of the road, I noticed that cars had run over 1t. It was running straight just in be tween a fence post and the bridge. ''Q. Where was that fence post now? "A. It was something near opposite the railing of the post on the bridge. "Q. The Bridge Post? "A. Yes, sir, about the same distance, the best I remember, the wooden post between the railing and the bridge. "Q. What sort of a piece of timber was that fence post made of? · "A. It looked like bridge timber to me. "Q. With reference to its height,· how did it com pare with the bridge post, higher, or lower? "A. I could not hardly say, it was about as high as my head, the post was, but as to the height, how it compared with the height of the bridge post I could not tell. "Q. Could that fence post be seen back up the road a little? "A. I think so,. I am satisfied it could be seen. [23]

"Q. Was any fence attached to that post or go ing ~ the direction of the post? "A. Some wire had been nailed to it, and I think there were two wires yet nailed to it, but it had been run over, wagons ofl" ca~rs or something had run over it. "Q. In other words there was evidence of travel going in that direction? "A. Yes, sir. "Q. Was this fence up all right down to the point where vehicles had been turning in there and running over it? "A. I didn't notice that part of it. . ''Q. Were any fence posts along there as you ap proach the bridge? "A. I don't remem·ber whether the wire was nailed to tre~s or posts. "Q. There was a fence there? "A. Yes, sir. "Q. Mr. Underwood, can you describe that road there whether it was level or whether there was a ditch there to the right? "A. There was.nothing to be called a ditch, there was a little incline there where the road machine had throwed up the road. (P. 31) : "Q. Right at the bridge you mean-take it right at the bridge first and describe whether there was any ditch there? "A. Right at the bridge where the car track made the turn, it had a little slope there, the nearer th~ bridge you got the deeper it was. /

[24]

"Q. It sloped to the right? "A. Yes, sir, and right opposite this fence post there was a little stump over there right by the side of it and already in there. "Q. That little fill .was that on the right of way of the railway so far as you could tell? "A. I was off a few feet from the railroad bridge. "Q. Was it within the line of the clearing which had been made there for the railway right of way in other W

the fence post on the edge of the embankment and the bridge post was clear of under-brush? "A. Yes. "Q. Were any weeds there? "(Objected to). "Q. Were there any weeds or grass or anything there? "A. I never noticed any. "Q. Did you look around there? "A. Sir? "Q. Did you look around there and observe the situation there? "A. Yes, sir, I wanted to find out what caused the ·accident. (P. 32): "Q. Now, how far up the road, approaching the bridge, did you trace this car track from the bridge? "A. Some 8 or 10 steps back this way from where the car track turned in. "Q. I mean how far did you trace it from where the car tracks turned? "A. 8 or 10 steps. "Q. Which side of the road was the car tracks on? "A. On the right side. "Q. Going straight? _, "A. Seemed to be going straight until it came to this curve. "Q. How wide was ·the road there, Mr. Under wood, with reference to the· bridge? "A. It was some two or three feet wider than [26]

the bridge, I think, the best I remember about it. * * * "Cross-Examination. "By Mr. Hall: (Bottom p. 82): "Q. · Do you mean to say that the car track that you examined was in the road entirely up to the bridge? (P. 88) : "A. ·That it was in the road back from where it made the turn. "Q. How far back was it from where it made the turn from where you saw it made the tum, was the track toutside of the traveled roadway? "A. I didn't say it was outside of the traveled roadway. "Q. Where do you say it was? "A. I say it was on the right-hand side of the road. "Q. In the traveled roadway all the way? "A. As far as I traced it. "Q. How far did you trace it? "A. Some 8 or 10 steps. "Q. You tell the jury that that car track was in the traveled roadway all the way back. from this point where you say it ·attempted to turn in to the bridge? ''A. So far as I traced the track to the other car track you say? "By the court: "Q. Are you testifying that the car track didn't [27] leave the roadway at all? "A. It was, in the roadway back this way from where it started to make its turn, I traced the track back to where it made this turn; it crossed the road right there, the right-hand track, went out of the road, it was back this way where it was running straight, was over on the right-hand side. ''By Mr. Hall: "Q. You said, Mr. Underwood, something about there ·bein&' no ditch on the side of the road, but a depression or mark made there by the road ma chine? "A. Yes, sir. "Q. You don't call that a ditch? "A. I do not. "Q. How much lower than the surface of the road was it? "A. Probably eight (8) inches from the center of the road. "Q. Was th~ car track in that low place that you don't call a ditch? "A. No, sir. "Q. Was not in there at all? "A. No, sir, so far as I traced it to be certain. "Q. So it didn't go out of the traveled roadway at all until it got right at the bridge? "A. Right at this bentl where it made an effort to get on the bridge. "Q. Now you di'dn't see any weeds? "A. I said I didn't notice any, I didn't pay any attention to that. * * * "Q. Now you say that there was a place there [28]

r about 7 feet from the bridge that indicated that the car track had turned? "A. Yes, sir, it showed it plain. "Q. Just descr~bed to the jury this turn in the car track as you saw it on the ground? (P. 35): "A. Well, about 7 feet from the approach to the bridge I suppose it struck this bridge post, it was running straight and when it got within about 7 feet it made a turn, about like that (motioning) as quick a turn as possible. "By Juror: "Q. Did it strike that stump before it made this turn? "A. The right front wheel struck inside of that stump. "By Mr. Hall : "Q. I am asking you to describe to the jury that track as it appeared on the ground, not what you thought of it. Just tell them what it did? "Q. The tracks show that it made the turn, what happened to the turn? "A. The track made a curve to get up on the bridge. That is as plain as I can speak it. "Q. In other words, you say that at a point 7 !,) feet from this approach that that track swung around in a curve in the ·direction of the bridge- that is your testimony? "A. Yes, sir. [29]

"Q. Did you notice a place that indicated that the car had slid off? "A. The hind wheel where this little bank was where it woulti have run off of the road; it made a slight skid. "Q. And it skidded off to the right? "A. Yes, sir. * * * (P. 37): "Q. I show you a picture which was taken by the Virginian photographer, and will ask you if you can point out on that photograph the post which you say was built of bridge timber? "A. This is the bridge. "Q. That is the left corner and this is the right corner of the bridge, picture No. 8. "A. There is the post there (pointing). "Q. Now see if you can point out on this photo graph No. 9 about where this stump was that you say the right rear wheel hit? "A. This is the right-hand post. The stump was right opposite this post. The right wheel struck just inside that stump. The stump is maybe 4 inches through. Struck right down by the side of that stump. (Witness marks line on picture No. 9) ." * * * "Q. Now, the space where the car went off here to the right, you saw the picture taken by the photo grapher, the space on the photograph here, the space between the bridge post, right-hand bridge post and where the bushes or ·woods, commenced, the open space where the wire was down and where some vehicles appeared to be driving over the wire. [SO]

Now right along in that space, how high were the grass and weeds, if you noticed tl:J.em, and if .you didn't notice them, about right. qn the. ~_dge of the road there, right in the line as you approach the bridge between the right post Qf the bridge and this fence post~ did you dbserve a.ny high weeds or grass? , ~'A. I never noticed them, I don't think there was any high weeds there, there might ·ha.ve ·been some grass there, but I never noticed it enough to describe it. There might have been some grass or small weeds, but I didn'-t notice it sufficient to de scribe it." It will thus be observed that Mr. Underw.ood testified that the ear, according to the tracks which he traced was on the. right-hand side of the road going stra~g~t between the fence post and the bridge~ It .'Was in t4e ~raveled rpor tion of th8 road. He says he noticed that Qther cars had run over it. The fence\ post to the right of the right bridge post was made of .bridge timber~ 'X.his was ali indication that the road continued straight, and that the fence post and the right bridge post were the bridge posts constituting the entrance to the bridge over the railroad. He says that the· wire fence extended to the :fence post, but it had been run over and was down where the ear went over, "as wagons or cars, or something had run over it." In other words, he says that there was evidence of travel going down the railroad track ,between the fence post and the clearing. He says the little space between the fe-nce post on the edge of the embankment and bridge post was clear of underbrush. As to weeds, he says he did not observe any along the ~dge of the road, and he [31]

went there for the purpose of finding out what caused the accident and traced the tracts of the automobile. When asked to describe the. road, whether it was level or whether there was a ditch to the right, he says, there was nothing to be called a ditch, but there was a little incline there where the road machine had thrown up the road, and that . right at the bridge where the car track made a turn, "it had a little slope there." He says, the road was built on a little fill on the right of way of the railroad, off a few feet .from the railroad bridge. He says the space where the car went off was clear of bushes and trees, and that wagons had been turning down there running over the wire fence. A little further back, before the road made the turn, he says there was "no ditch there, just a small drop, you might say, the bed of the road, the ma chine had throwed up." He repeated that the space be tween the fence post on the edge of the embankment, and the bridge was clear of underi>rush. He repeats that the ca11 was on the right-hand side of the road going straight until it came to the curve. On cross-examination, he again states that the car was in the road back before it got to the curve. Counsel for the Railway Company endeavored to make him say that the car got out of the traveled road way, and he repeats "I say it was' on the right-hand side of the road." "Q. In the traveled roadway all the way?" "A. As far as I traced it." Then the court asked him if he was testifying that the car track did not leave the roadway at all, and he answered that it was in the road way back beyond where it started to make the turn. Upon cross-examination, he repeats that there was no ditch, but merely a low place probably eight inches lower than the center 10f the road where the road machine had been [32] scraping up\ the road. He was asked if the car track was in that low place and he answered emphatically "no, sir." Then counsel for the Railway Company asked him this question :

"Q. So it did not· go out of the traveled road way at all until it got right at the bridge? "A. Right at this bend where it made an effort to get on the bridge."

It will be observed that again counsel for the Rail way Company persisted in asking Mr. Underwood to ex plain "how did the track show that it made the turn, what happened to the turn," and he answered, "the track made a curve to get up on the bridge. That is as plain as I can speak it."

Mr. J. P. Demsey, a disinterested witness, testified on pages 39 and 40 of the record as follows: (P. 39): "Q. Is there any pronounced ditch, Mr. Dempsey, coming up to. the nridge from the road 1 "A. Of course there is a ditch line there, but the overflow had been filled pretty nearly. No ditch to amount to anything. * * * "Q. Was there any brush or undergrowth in this ditch where the ditch had been? "A. No, sir, filled with new made dirt and wash ing from the road, there was no car tracks in the ditch place. "Q. Could this car track extend across the right of way in any place? [33]

"A. Not until it got nearly to the jumping off place that led across it. "Q. Do you know whether the road as it enters the bridge is narrower than it is several feet back? "A. Well, it is just tapered, back farther it is wider and has to make that approach on the bridge there, the approach is possibly narrower. • • • "Q. Have you ever had occasion, since then, to drive along that road at night and stop the car after making the turn to see where the lights shine? "A. I drove along there to see what could have possibly caused that wreck, and my light- "A. I drove there just purposely to see where my light would be shining at the point of this curve and my light focused in the exact direction that this fellow took, judging from the tracks. "Q. Where did it focus? "A. Almost 'between this post that was standing 20 or 25 feet.from the. corner of the bridge standing at the point of the curve about where the car left the road where it started leading off the road. I stopped my car there to see where my light would be."

The dotted line on Mr. Daniel's map indicates a fence along the right side of the road. In reference to this fence, Mr.. Daniel testified, page 44 of the record :

"Q. Then from the edge of the clearing back to wards Phenix, what does that little dotted line in dicate? "A. That is the wire fence. "Q. How close is that wire fence to the road? [34]

"A. Right on the edge of the road it varies from about 12 to 14 inches. "Q. Does the traveled portion of the road ex tend to the fence ~ractically? "A. Almost to the fence/' It will thus be seen that the car could not possibly have gotten out of the road. On page 45 of the record, Mr. Daniel was asked:

"Q. About how far is it from the edge of the bridge where the car went over the embankment? "A. A little less than 2 feet." It is manifest from the photographs, and all the testi mony, that there was no shrubbery, weeds, or anything that close to the bridge that showed up above the level of the road. And on page 46, Mr. Daniel testified:

"Yes, ~ir, the ground becomes practically the same as the road 20 or 25 feet, but I will not be certain about that distance." He was asked on cross-examination, page 46: "Q. How much lower is that ditch along the right side of the road there back 78 feet than the crown of the road? "A. Well, I did not measure that, 'but I should estimate th~t ditch is about 12 ·inches lower than the crown of the road."

,.-~- Up close to the bridge he said the road was raised, and the drop off to the right where the car went off was approxi mately two feet, but that is right at the curve where the [85] car skidded ofr" when the driver got close enough to see that the bridge was not between the fence post and the right corner of the bridge, and then undertook to make the bridge. Mr. Cross, testifying again with reference to the physical facts, said, on pages 120 and 121 of the record: P. 120 (!bottom) : "By Mr. Allen: "Q. Mr. Cross, witnesses for the Virginian Rail way Company, have testified in this case that there were weeds and grass and underbrush and shrub bery, as they call it, along the right of the roadway in the edge of the roadway just as the road ap proached the point of the accident at this place. Now, I want to ask you if you went there on the day this accident happened, within a short time? P. 121 (top): "A. I was there the next morning, really the morning of the accident, I mean. "Q. Did you get back there at nighij in a day or two after that? "A. Sometime after that I went back there, I was driving along there and took a little more ob servation than what I had taken before in reference to where the lights would reflect, at ~out the place where their car left the road, where they began to swerve to the right. "Q. Where did you stop your car? "A. I stopped my car, I did it just for curiosity. I stopped my car about where their car began to cut [86]

in the ditch to see where ·the lights would reflect; they were focussed on the right-hand ~ost of the bridge and a fence post B~bout 17 or 18 feet to the right of the bridge. "Q. Now, within that space where those lights focussed were there any weeds or shrubbery high enough to indicate to a man to turn or to keep on? "A. I could not tell."

And again on page 134, Mr. Cross testified with refer ence to the physical facts as follows:

"Q. I will ask you to state fu the jury as near as you can the difference in the roadway there now and the time when you were there shortly after the accident happened, if any? "A. The roadway is a little narrower now than what it was at that time. I walked out to the shoul der of the road like it was at that time and the ditch along the road is clean ; it is a little bit deeper than it was at the time of the accident, and under.. brush and weeds have grown up and over the edge of the road more than what it was at that time. "Q. Did you notice the fence today, a little wire fence along in the edge of the bushes? "A. Yes, sir. "Q. Was the roadway worked ·aild scraped up nearer to the fence shortly after the accident than it is now, if so, how closely? ''A. Yes, sir, anywhere from 12 to 18 inches closer. "Q. How could you tell that, Mr. Cross? "A. If you will notice closely you can see where [37]

the dirt pulled up from the scraper wher~ it had ·bee:n worked !before, a little embankment there three or four inches high of loose dirt. "Q. Did you go down and examine it closely? "A. Yes, sir." Mr. Ashworth, roaq patrolman, testified on page 185 (top), as to physical facts, as follows :

"Q. State whethe:r;o the road-bed differs any now from what it was then, and if So state the differ ence? "A. I think it is a little narrower .than it was and the woods are grown more over the ditch line than it was before. The vegetation on the right 9f way is a little mor~ than it w~s theJl on account of the wet season. "Q. You think the rqadway was scraped,. nearer . th~ fence and th~ 'bus~e$ ~ve grow:n up more? '~A. Yes, sir." Mr. Underwood, upon being recalled, testified on pages 185 and 186 as follows: P. ~85 (bottom) : "Q. Mr. Unde!'wood, when you were on the stand before you d~scribed the roadway and a little fill right at the !bridge where this accident hap pened; were you out there today at the same place? '~A. Yes, sir.- "Q. Can you state to the jury wh~ther that fill is exactly like it was on the day of the accident, or whether it was ~nded out ftU"ther, the road was broader OJ;' n~r:row~:r;o JiL't tb~t point where the fill [38]

begins? "A. The only difference that I can see is that it is grown up there with weeds and grass and it wasn't then. "Q. It wasn't then? "A. No, sir. "Q. Dfd you notice that stump about as high as a fence post on the side of the road, some 50, 60 or 70 feet from the bridge, did you notice it either time or both times? "A. I did today, but I didn't notice it the first time. (P. 136): "Q. How much wider would you say the road way was last September right where the fill begins to drop off is more apparent? · "A. I think it is albout the same width now, ex cept this growth that is over it, the way i see it now; it was kept clean and the car track made a plain track then. "Q. Did the car track get over on the right side of that little drain at all? "A. Yes, sir, it slid off there. "Q. I mean before it got to the fill? "A. No, sir, I don't think it did right where the fill commences." At the bottom of page 136, Mr. Cross further testified: ''By Mr. Allen: ''Q. Mr. Cross, I forgot to ask you a moment ago whether the track of this ear which you observed [39]

there last fall when you went there shortly after the accident, whether that track at any time before it got down to. the edge of the fill seemed to be on the right side of that drain? "A. No, sir, it never got over that little drainage there until it got down nearly to the cut."

The foregoing quotations with reference to the physical facts are taken from the testimony of plaintiffs witnesses, Daniel, surveyor; Dempsey, Ashworth, road patrolman; Cross, real estate agent at Phenix, and W. M. Underwood, the plaintiff. They are all of the plaintiff's witnesses who testified to physical facts. The first three were wholly disin terested in the case. In opposition to the testimony given by them, the defendant produced McDowell, its claim agent, Rasmussen, its photographer, and W. T. Pillow, a farmer in the community. While, under the rule which has been fol lowed in this state from time immemorial, the court could not consider the testimony of the defendant's witnesses in so far as it conflicts with that of the plaintiff's witnesses, since the court, in this case, departed from this age-long rule and based its :findings of fact on the testimony of the defendant's witnesses, we deem it proper to quote from that testimony and comment upon it. At pages 53, 54, 55, 56 and 57 of the record, Mr. Rasmus sen testified as follows : (P. 58):

"Q. Did you observe the track that this auto mobile had taken approaching the place where it plunged over the cut? 4 ' ~ Well, about 78 .feet I think it was, it shows [40]

where it ran off of the road on the J;ight into that little gutter, a lot of grass growing in that gutter and it ran along in that gutter until it hit the corner of the bridge and there was a few little spokes laying there, I didn't know where they came from. "Q. But you saw automobile spokes lying there? "A. Yes, sir. "Q. And did the track continue all the way for practically 78 feet? "A. Yes, sir. "Q. Were there any bushes or anything of that sort along there? "A. Yes, sir, the right rail was in the grass and shrublbery for a distance of 78 feet before the car went over the bank. "Q. How high were the weeds and bushes that the wheels ran through? "A. Up about 78 feet from the bridge, I imagine about 2, 3 and 4 inches high, and then in there where the fill commences, I imagine 25 feet from ·the bridge, they are 8 or 10, and probably some two feet high. A regular old growth there of weeds and grass. * * * (Page 54, bottom): "Q. Now, you testify that there was grass and shrubbery along by the road there and that the wheels of the car 7S feet from the bridge post ran along in a gutter filled with !bushes? "A. I said it was grass about 2 or 3 inches high running along in that gutter there and that shrubbery is built up there on the side where this fence is that I guess you are speaking of and down [41]

in here is the heavy shrubbe.ry where this fall is. Down in here it is grass two or three inches tall. (Page 55, top) :

"Q. You said in your direct examination that it was 78 feet from the bridge along in the grass? "A. Started in the shrulfuery, you might call it grass what I call shrubbery, is that high, ran over there into that grass and whatever you call it, 78 feet. "Q. But there were some bushes back here at the edge of the clearing where the car went over? "A. Yes, sir, at this curve where the car started here. Along in here is some high grass and weeds about 10 inches high at that time. (Indicating on picture). * * * (Page 56, top) : ''Q. You saw that post here to the right on picture No. 8? "A. Yes, it looks like a post tbut it may not be a post it could be possibly some one was standing there with something in their hand. "Q. Isn't that the post that that fence was fastened to that you say you didn't observe? "A. I won't say. "Q. · You wouldn't say that is a post? "A. No, sir, but there is, hut there is. a part of a person there but I won't say that js a post. "Q. You have got a better view of what ap pears to be a post than you ·have of a person? "A. I think it is a youn~ lady that was down [42] there at the time, we asked her to stand to one side. "Q. Mr. Rasmussen what is that right where I hold my pencil right there that looks like a road way? "A. That is a drop from that fill to the road.. way. That is the space, it struck this bridge here. "Q. I will ask you to look at this that looks like a roadway? "(Addressing the jury). "A. I didn't say that at all, I didn't say it looked like a roadway. "Q. That was my question. "A. I didn't say it was a road,way, I didn't say that at all.

"REDIRECT-EXAMINATION . "By Mr. Wingfield: "Q. · Mr. Rasmussen, did you see any curve in the track made by the automobile from the point where it left the road? "A. 78 feet? "Q. Yes,· sir. "A. There wasn't any curve that I could see, went right straight and left the front wheel strike tlie post. "Q. Did you see any curve in the track just be fore the car reached the bridge? "A. No, sir, I did not. "Q. Did you see any place where the automobile skidded or any indication of skidding? "A. No, sir. [43]

"Q. Didn't see any place where the automobile skidded around after the car struck the bridge? "A. No, sir, I don't remember seeing that.

RE-CROSS-EXAMINATION (Page 57, top) : "By Mr. Allen: "Q. You didn't mean to say that the car went straight 78 feet and struck the bridge? "A. I said it got off the roadway 78 feet from the bridge, got off at that point and went straight to the bridge and the left front wheel went straight striking the bridge." McDowell, the claim agent, of the company, testified as follows, at pages 108 and 109 and 110 · of the record: (Page 108): "Q. Did you, observe the tracks of this car that went over as it approached the bridge? "A. Yes, sir. "Q. How far from the bridge was it that the tracks went out of the traveled roadway? "A. It left the road 78 feet from the corner of the bridge. "Q. Did you measure that distance? "A. I stepped it off and later saw Mr. Ash· worth measuring it with a tape line. "Q. Did he make the same measurement? "A. I think I stepped off 79 feet, but after 1 saw the measurement I dropped off a foot. "Q. From the point where it went into the ditch? [44]

"A. Practically straight. "Q. Where was the track located? "A. It was in the ditch after leaving the road, the shallow roadway.* * * (Page 108 bottom) : "Q. Were there any marks anywhere along that track that indicated that the car skid~ed? "A. No, sir, it seemed to take a practically straight course, bearing to the right until it hit the bridge where the spokes and other pieces of auto mobile were layi~g down, and I take it when it struck the !bridge it :flew around and went off there. *** (Page 109 middle):

"CROSS-EXAMINATION

"By Mr. Early: "Q. You have been in the court room all the time and you heard W. T. Pillow testify that the Road Machine had just gone over the road an4 dug out these ditches, is that your observance? "A. I didn't notice. "Q. If it had gone over there it could JlOt have been very deep, there wasn't scarcely any ditch there at all? "A. That was the drop off there from where he left the road, as I said, I didn't take the d~pth of the ditch, but fr()m 4 to 8 inches. "Q. From the crown· of the road? "A. No, sir, an abrupt drop. [45]

"Q. 4 to 8 inches? "A. Yes, sir. "Q. You mean that it extended back 78 feet? "A. Yes, sir. "Q. How deep did it get before it got to the fill? "A. It remained about the same until it cleared those woods and started to the fill. "Q. That fill isn't over 10 feet from the bridge at the most? "A. Fifteen (15). "Q. Where the fill is there is just an embank ment goes off? "A. It is a slope there. * * * (Page 110):

"Juror: I would like to ask the question: "Q. How far is this car fr()m the end of the bridge? "A. That tree that you see there is 78 feet--I don't know just where my car was standing, 35 or 40 feet off from the tree.

"REDIRE,CT EXAMINATION" "By Mr. Hall : "Q. You mean that your car was back 35 or 40 feet from the point where it left the roadway? "A. Yes, sir."

W. T. Pillow, the other witness for the company, testi fied at pages 95, 96 and 97 of the ·record as follows : [46]

(Page 95, top) :

"Q. How far back from the bridge did this track leave the traveled roadway? "A. I didn't measure it, but it seemed to me that it was some 50 or 60 feet. "Q. You didn't measure it? "A. No, sir. The point where it started leaving the road and then as it approached the :bridge the car turned up there on the drain and it went over that little drain just before it went over the cut, it went over that little drain, the right-hand side of the wheel. "Q. After the car left the road where did the right wheels of the car run? "A. The right wheels went over the ditch over 'that little drain. "Q. Over the far side or in it? "A. In it part of the way, but it went over it before it hit the bridge. "Q. Was that drain deep enough for anybody to know that they were out of the road? "A. Certainly that was a little ditch at that time, Mr. Ashworth hadn't been long over it. "Q. Did you notice where the car skidded? "A. Yes, sir. "Q. Was there a skid place there to indicate that? "A. Yes. sir. "Q. How much skid was that? "A. Right smart of a skid. "Q. Was there any curve in the track of the automobile prior to the time that it made this skid? [47]

"A. It seemed like when they knew they were going into the cut they tried to turn around. "Q. How close was that from the cut? "A. About 115 steps. "Q. From the cut? "A. Yes, sir. * * * (Page 96): "Q. Isn't the road bed cleared nearly to that wire fence, doesn't the road machine come very nearly to the wire fence, when it scrapes the road? "A. I reckon it does. "Q. A man could hardly come out of the road be fore he come to the fence, he is bound to go over the wire fence? "A. If he had kept out there he would have been bound to come into the wire fence. "Q. Do you know there is a lbend there at the fill? "A. Yes, sir. "Q. Then the fence leaves the road there at that fill and keeps straight on and then the road makes a turn into the bridge? "A. Yes, sir. * * * (Page 97, top) : "Q. This car track was simply on the- extreme right-hand side of the road that you saw? "A. Yes, sir, the track was on the right-hand side of the road. "Q. And where the road makes a turn to go into the bridge right on the fill where the road turns that is where you saw the car make a skid? [48]

"A. It is in the ditch. "Q. There isn't any ditch up there at the fill? "A. This drain, they call it a ditch or drain, it was right deep at that time; Mr. Ashworth had just worked the road, he had just scraped it up Thursday or Friday before this accident happened. It was right fresh because that was the only track there at all. "Q.. It is just an embankment that drains off? "A. Yes, sir, it drains the water down, I think they have a ditch up the railroad to drain the water. "Q. And that is where the car attempted to make the turn after it got on the edge of the fill and then hit one of the .wheels on the bridge. "A. Yes."

K. L. Woody was also called by the defendant company to testify in reference to the so-called "ditch", and the weeds. His testimony was so weak that counsel for the plaintiff did not cross-examine. We quote his entire · testimony on the subject (Rec. p. 106) :

"Q. Did you go to the scene of this accident last September after Mrs. Underwood was killed? "A. I can't be positive just what day it was, but I think it was possibly ~hursday or Friday of the week in which the accident occurred. ''Q. Wlien you went to the sc;:ene of the accident, did you observe the ditcll on the right side of the road approaching the bridge? "A. Yes, sir, I was on my way to Lynchburg, and having heard of this accident I was naturally interested and stopped my car just !before I got to [49]

the bridge, called my wife's attention to it, showing her where the accident occurred. I didn't get out of my car, but noticed the ditch on the right-hand side. "Q. · I wish you would describe that ditch and the growth? "A. The ditch had been recently cleaned out by the road authorities and was, I should say, from 10 to 15 inches deep and was grown up to some extent with weeds. "Q. Along in the ditch? "A. Some in the ditch and on both sides of the ditch. "Q. How high were those weeds in and along the sides of the ditch? "A. The weeds were higher on the sides of the ditch, not very high in the ditch itself, but possibly 10 to 14 inches high on the sides. "Q. The weeds on both sides of the ditch, the ones next to the road as well as the ones next to the fence? "A. Yes, sir. "Q. And you say those weeds were from 10 to 16 inches high on both sides of the ditch? "A. That is my recollection at this time. Of course I had no idea we would ever be called on to testify and didn't make any calculations of it at the time. "Q. You are giving your best recollection? "A. Yes, sir." It will be observed that Mr. Woody's testimony is limited to the "ditch", and the weeds. He says "the ditch had [50]

been recently cleaned out rby the road authorities * * * and was grown up to some extent· with weeds.'' This testimony corresponds with that of Mr. Pillow, who said: "Mr. Ashworth had just worked the road, he had just scraped it up ThursdoJg or Friday before the accident." (The accident happened on Mon day).

Tkis testimony was given by witnesses for the Raillwcvy Company. Mr. Woody says "the ditch had been recently cleaned out." Mr. Pillow says "Mr. Ashworth had just scraped it up Thrusday or Friday before the accident," which occurred on Monday. Mr. Pillow's use of the word "scraped," indicates the use of the road machine. Indeed, he says, on page 96 of the record, that the road machine comes very nearly to the wire fence when it scrapes the road. We submit, with the greatest respect for the findings of fact of this Honorable Court, that if the road had just been worked, the so-called ditch cleaned out and the road "scraped" on Thursday or Friday, it was a physical im possibility for the "ditch" or the road on the inside of the "ditch" to be grown up with shrubbery, weeds and grass on Monday. This court will take judicial notice of the fact that nature does not grow shrubbery, weeds and grass that quickly in this country in Septembetr in the 'J)Oor soil of a public kig h:WOJJJ. It will thus be observed that there was a direct conflict between the four witnesses for the plaintiff and the four for the defendant, with reference to the physical facts. Indeed, only two of the witnesses for the defendant, Me- [ 51 ]

Dowell and Rasmussen, were in serious confiict with the plaintiff's witnesses. While Woody stated that the "ditch", and the road on the inside of the "ditch" were grown up with weeds "10 or 15 inches high," he· proved the inac curacy of that statement in saying, in the same breath, that the ditch had just been cleaned out and the road worked. Pillow, the fourth witness for the defendant, really gave testimony in harmony with that given by the four witnesses for the plaintiff. He said that the car could not have left the road without running into the fence. He also said that the fence ran straight into the cut while the road turned to the left within a few feet of the bridge and left the fence so as to make the bridge. As before stated, anyone can observe from the map that the fence is perfectly straight and that the fence post on the edge of the cut is in direct line with the rest of the fence. Pillow also said that the track of the car was simply on the right-hand side of .the roaa. According to his testimony, no tall weeds and grass could possibly have been in the so-called ditch, because, he said, "at that time, Mr. Ashworth had just worked the road, he had just scraped it up Thursday or Friday before this accident happened. It was right fresh, because that was the only track there at all." We ask the court again, how could this "depression," "ditch," "gutter," or whatever it is called, lbe filled with a growth of weeds and grass and shrubbery, when the road machine had just scraped it a few days before the accident? Rasmussen and McDowell, the other two witnesses for the Railway Company, who testified with reference· to phy sical facts, said that the car left the road 78 feet from the bridge, and went straight, and the left front wheel struck the bridge. That was another pky.sical, impossibility. There [52] was a 32 degree curve within 15 feet of the bridge. One can plainly observe with the naked eye by glance at the map, which was admitted to be correct, that the fence, in dicated by the dotted line to the right of the road, follows the road so closely that it is almost in the road. Where the road turns the fence is as close to the traveled portion of the road as it can possibly be. Had the car left the traveled portion of the road 78 feet from the bridge, and followed a straight course, it would have run into this fence. Had.he kept clear of the fence, and continued straight, he would have gone straight into the cut between the fence post and the bridge and missed the bridge entirely. With a 32 de gree curve in the road, within 15 feet of the bridge, the car was bound to turn to the left to strike the bridge at all. All of the testimony shows that the left front wheel struck in side of the right bridge post. It is perfectly clear that the testimony of Rasmussen and McDowell that the car left the road 78 feet from the bridge and followed a straight course into the cut, cannot be true. Rasmussen also said that he did not even see the fence along the edge of the road, and that the surveyor was mis taken when he said the fence was noticeable. Rasmussen was so blind that he refused to see the fence post on the edge of the cut in line with the fence along the road. When he was shown photograph number 8, and the post was pointed out to him on this photograph, he pretended that it was a young lady. See page 27 of this brief. We ask the court at this point to look at photograph number 8, page 145 of the record, and it will be observed that the post is plainly visible, with a lady behind it. For a better view of the post, see photograph number 11, page 148 of the record. Rasmussen also weakened on the grass and shrubbery be ing in the "gutter". On page 55, he says: [53]

"You might call it grass, what I call shrubbery." Mr. Ashworth, road patrolman, testified in reference to the so-ca.lled ditch, at page 42 of the recorcl as follows : "By Mr. Hall : "Q. What kind of a ditch was that? "A. A slight .ditch, I imagine 5 or 6 inches. I never measured it, but it wasn't much ditch. It wasn't very deep. "Q. A~ it got closer to the bridge, the ditch got lower, did it not? "A. No, sir, there is a little fill there. "Q. I mean it was lower than the middle of the road? "A. Yes, sir. "Q. So you say that the ditch was 5 or 6 inches deep 78 feet from the bridge, and as you approach the bridge the ditch on that side of the road where the fall was it ·got higher? "A. It wa:s lower than the bridge was. "Q. And that condition extended how far back from the bridge? "A. I imagine that fall runs out there some 15 feet, something like that, I never did measure it."

It will ~be observed that although questioned closely by Mr. Hall on this subject, Mr. Ashworth gave· testimony to the effect that there was really no ditch to amount to anything on the right-hand side of the road. He says "slight ditch, I imagine 5 or 6 inches. I never measured it, but it was not much ditch." He says it· did not get deeper as it got closer to the bridge, but there was merely [ 54 ] a little fill there, which runs out some 15 feet from the bridge. Please notice that Mr. Ashworth did not say one word about grass, shrubbery, or weeds being in this so called ditch or on the side of the road on the inside of the ditch. The foregoing quotations from the record .cover all the material facts testified to, excepting the facts in connection with the damage the car did to the bridge. We shall re serve our discussion of! these facts until we reach that sentence in the opinion which deals with them.

Tkird Sentence. "It also appeared (referring to the Farr Case) from direct evidence that the driver, in possession of his faculties, was driving the car slowly and carefully."

In this connection, let us again remind the court that it was not encumbent upon the plaintiff to prove that he was free from contributory negligence. The following in struction was given on this point, without objection from the railway company: "The court further instructs the jury that con tributory negligence on the part of said Rakes and plaintiff's said intestate, cannot be presulJled. On the contrary, they are presumed to have exercised due and proper care at the time of the accident, in the absence of evidence to the contrary, and the bur den is upon the defendant railway company to prove contributory negligence by a prepondeJ;"ance of the evidence to the satisfaction of the jury, unless ~he [55]

evidence offered by the plaintiff shows that the saia Rakes or plaintiff's intestate was guilty of contribu tory negligence, or unless it may be fairly inferred from all the evidence and circumstances in the case."

This instruction has been recognized as the law of this state for more than a hundred years. This court, in the opinion in the instant case, says :

"The law of the case is well settled. Relying upon the contributory negligence of plaintiff's inte state to defeat a recovery, the burden was upon the defendant to prove contributory negligence by a preponderance ~f the evidence, unless the evidence for the plaintiff showed such contributory neg ligence, or unless contributory negligence might be fairly inferred from all the evidence and circum stances of the case. Southern Ry. Co. v. Bryant, 95 Va. 220; Southern Ry. Co. v. Bruce, 97 Va. 92; Rich mond, etc. v. Gordon, 102 Va. 408."

In the case of Southl!l.l"n RatiltwCIIIJ Co. v. Bryant, 95 VL. 220, cite~ by the court, it is said:

"One cannot fail to call to mind that contributory negligence is as distinctly wrong in the plaintiff as negligence is in the defendant, and that it is as much against that principle of law to presume it on the one side as on the other; resulting therefore in the conclusion, that the defendant can no more avail himself of the one than can the plaintiff of the other." r 56 ]

It was also said in the Bruant -Case that it could not be inferred as a matter of law·that because Bryant drove upon the track without stopping, he did not listen, and that ''the instinct of preservation forbids imputation of recklessness to any one." It was further held in that case (which has been followed by many others), _that in the absence of evi dence to the contrary; the presumption. is that the traveler did his duty in approaching the crossing. We, therefore, submit that the court could not legally infer contributory negligence on the part of the driver of the car from the mere failure of the plaintiff, by direct evidence, to show that the driver of the car was "in possession of his facul ties and dTiving the car slowly and carefully." ·We shall presently examine the evidence to support the charge of contributory negligence.

Fourth Sentence. "The circumstantial evidence in the instant case is to the effect that the car immediately before the accident was being driven at a rapid rate of speed." Let us here remind the court· that on this issue of con tributory negligence, resolved in favor of the plaintiff by the verdict of the jury on which the trial court rendered judgment, we must bear- in mind that we are considering the case as upon a demurrer to the evidence, and that con tributory negligence only becomes a question of law to be taken from the jury when the facts are such that fair minded men can draw only one· inference therefrom. As stated by Judge Holt, speaking for the Special Court of Appeals, in the ease of Davis v. Rogers, 124 S. E. 408:

"When the facts are certain, and when· fair- [57]

minded men cannot be of two opinions as to the in ferences to be deduced therefrom, then the matter is for the court and not for the jury."

Judge Holt was discussing Section 6003 of the Code, which precludes the court from directing. a verdict. He says:

"This rule (referring to directing verdicts) we are precluded by statute from following (Code 6003) though it is still possible under our practice by less summary methods to accomplish the same results. A demurrer to evidence may be interposed; evidence may be stricken out (Fleskman v. Bibb, 188 Va. 582, 88 S. E. 64); the trial court may set aside the verdict, and in a proper case give final judgment (Code 6251) ; the trial court may decline to give any instruction where the evidence would not sustain a verdi~ct, and it. may in substance direct a verdict by stating in an instruction a hypothetical case and telling them, if they believe, to find, etc. (Small v. Virginia R. & P. Co., 125 Va. 416, 99 S. E. 525). "The effect of these established methods of pro cedure is to substitute the judgment of the court for the judgment 'or verdict of the jury. When should this power be used?"

Mter quoting from a number of authorities, this learned jurist concludes with the quotation to the effect that when fair-minded men cannot ·be of two opinions as to the infer ences to be drawn from the evidence, then, and only then, is the matter for 'the court, and not the jury. See also Vir- [58]

ginia Ry. Co. v. London, supra; Kelly v. SchneUer, 8'llf[J'1"a,· Clinchfield Coal Co. v. Compton, supra. The note of the Revisors, appended to Section 6251 of the Code, says:

"Revisor's Note.-This section is new, and is in tended to apply to all civil actions and, of course, to .motions under section 6046, as these have been held to be actions. The object is to end the action at once and put the losing party to his writ of error, tlius avoiding the temptation to perjury and in many cases ~he unnecessary expense of a second ·trial. "The further effect of the section is that it will probably be used as a substitute for a demurrer to the evidence. Instead of demurring to the evidence, the trial will proceed to verdict, and the losing party will move to set aside the verdict because contrary to the evidence or without evidence to support it; and if the court sustains the motion, it will enter judgment accordingly, and the party in whose favor the verdict was rendered will then apply for a writ of error. The verdict is not robbed of any of the weight heretofore given to the verdict of a jury, but the judgment of the appellate· court, instead of re manding the case· for a new trial, will be a final judgment, just as it was under the former law on a demurrer to the evidence. The advantage of get ting rid of the additional trial seems to be mani fest." lf this section was intended to be used as a substitute for a demurrer to the evidence, then if the losing party does [ &9 ] not demur to the evidence, but goes to trial and moves to set aside the verdict after trial, the rule of decision is sub stantially the same as it would have been. had there been a demurrer to the evidence before the verdict.

InN. & W. Ry. Co. v. Thayer, 187 Va. 294, 119 S. E. 107, the court said : "The judgment of the trial court cannot be dis turbed unless it may be seen from the record that the verdict of the jury was plainly wrong and con trary to the evidence, or without evidence to sup port it, and in determining this question the case must be reviewed as on a demurrer to the evidence by plaintiff in error." In C. & 0. Ry. Co. v. Baker, 148 S. E. 299, point 2 of the syllabus is as follows: "Under Code 1919, Sec. 6868, appellate court, in reviewing evidence to ascertain correctness of ver dict approved by trial court, considers case practi cally as upon demurrer to evidence, hut, if so con sidered, verdict is without evidence to sustain it or plainly wrong, final judgment should be entered ac cordingly." And in KeUy v. SchJneUer, 8'111p'ra, Judge Campbell con cluded the opinion in these words: "Viewing the case from the .standpoint of a de murrer to the evidence, we are of the opinion that the evidence is ample to sustain the verdict, and the action of the trial court in entering judgment thereon is without error." [ 60 ]

Now, keeping .clearly in mind that the defendant under the demurrer to the evidence rule, admits the truth of the plaintiff's evidence, and all just inferences that can prop erly be drawn therefrom by the jury; and waives all of the defendant's own eviden-ce which conflicts with that of the plaintiff's, or which has been impeached, and all inferences from its own evidence (although not in conflict with the plaintiff's), which do not necessarily result therefrom-let us proceed: We pause here to enquire: What circumstantial evidence is th_ere in.this. record which shows so clearly that the ear was being driven at a rapid rate of speed that reasonably fair-minded men cannot differ as to the conclusion to be drawn therefrom? Is not the conclusion to be drawn from the testimony dependent upon the weig kt to be given cir cumstantial evidence? If so, this court cannot legally dis tur-b the verdict of the jury. In this connection, let us remind the cQurt that there was no evidence of fast driving from the mouth of a single wit ness introduced by the plaintiff. There was some testi mony introduced by the defendant, and some physical facts that were relied on in the argument, and the printed brief, as tending to show contributory negligence, but, as we shall presentely see, it was of such a character that reasonable minds might differ as to the inferences to be drawn there from; and hence the jury had a right to discredit it, and their verdict is final. Let us now refer to the record, and while we are doing so, let us keep in mind the fact that the plaintiff introduced no testimony from which fast driving could be inferred. We shall content ourselves with refer ring to the testimony introduced on behalf of the defendant. ''

[ 61 ]

Tom Shook, who was called by the defendant, testified at the bottom of page 79 of the record, as follows: "Q. How did you all travel that night, fast or slow? "A. We was just going slow." Mrs. J. W. Carden testified, pages 67, 68 and 69 of the record, as follows : "Mrs. J. W. Carden, a witness of lawful age, be ing first duly sworn, deposes as follows:

DIRECT EXAMINATION

"By Mr. Wingfield: "Q. Where do you live? "A. Near Phoenix. "Q. Do you live near the road that comes ·across the bridge where the accident happened to Tom Shook and Mrs. Underwood last September? "A. Yes, sir. "Q. How far from the road you you live? "A. I don't know exactly how far. "Q. Is it within hearing of the road? "A. Yes, sir. "Q. Can you hear automobiles pass from your house? "A. Yes, sir. "Q. Do you remember the night of the accident to Mrs. Underwood and Tom Shook? "A. Yes, sir. "Q. Did you hear the car pass your house shortly before this accident? [ 62 ]

"A. Yes, sir. "Q. Could you estimate about how fast this car was going? (ObjeCted to as immaterial.) "A. No, sir. "Q. How long have you lived there, Mrs. Car den? "A. I have lived at this place nearly five years. "Q. And during that time have automobiles gone past constantly? "A. Yes, sir, every day. "Q. I believe you say you could hear them from your house? "A. Yes, sir. "Q. By that long experience, can you. judge the speed of an automobile as it passes the road? "A. Yes, sir, I think I can. "Q. Did you hear a car pass your house shortly before this accident? "A. Yes, sir. "Q. Just tell the jury whether the car was going fast or slow and what you heard? "A. I don't know exactly how fast the car was running, but from the way the sound traveled it seemed to me that it was going very rapidly, and indeed it was going faster than any car I have heard on that road before. "Q. How long before this accident that you heard this car going by? "A. It was just a few seconds, I heard the car running and then the crash and there was no sound of the car after that. "Q. And it was only a few seconds between the [ 68 ] time you heard the car and the time you heard the crash? "A. It could not have been but a few seconds."

CROSS-EXAMINATION "By Mr. Allen: "Q. Mrs. Carden, can you run a car yourself? "A. No, sir. "Q. Did you ever time a car? "A. No, sir. "Q. All those cars you have heard pass there, you never timed any one of them to determine just what rate of speed they were traveling? "A. No, sir. "Q. Did you ever ride in a car? "A. I have ridden a few times. "Q. ·Can you tell when a car is in low, high or intermediate gear? "A. I always leave that to the chauffeur. "Q. So if you heard a car running in low, high or intermediate gear, you would not know how fast it would be running? '~A. No, sir. "Q. Do you know how near the car was when you heard it? "A. Near the corner. "Q. At Dobbynspecks? "A. It must have stopped because I heard it start. "Q. You heard it start at the corner? "A. Yes, sir, I think so. "Q. Did you time that ear so as to tell just how [ 64 ]

long it took to run from the corner to the bridge? "A. No, sir, I had no way of timing it. "Q. You could tell us whether one, two or three minutes? "A. It could ·not have been that long. "Q. Can you tell us how long? "A. It wasn't but a few seconds. "Q. How many seconds, approximately? "A. It could not have been a half minute, it was just going as rapidly as it could. "Q. Your best judgment is that it could n9t have been as much as a half minute going from the corner from Dobbynspecks over to the cut? "A. I am sure it could not have been more than that. "Q. You testified over here before that you were unable to say whether it was one, two or three min utes? "A. I think any one would know a horse could go it in three minutes, much less a car. "Q. I mean the first time you testified before, the distance was calculated, and you testified that you could not say whether it took one, two or three minutes, now didn't you say that? "A. Yes, sir, I did say that, but I didn't intend to say minutes." (Witness stands aside.) Before co'IIlmenting on her testimony, please refer to that given by J. H. Childress, on page 127 of the record: "Mr. Childress, were you with me when I meas ured. the various distances say from Dobynspeck's [ 65 ]

corner to the bridge and to Mrs. Carden's house? "A. Yes, sir. "Q. Do you recall how far it was from Dobyn speck's to the bridge where the accident occurred? "A. Eight-tenths of a mile. "Q. Do you recall how far it was from the bridge to Mrs. Carden,'s house? "A. One and one-tenth miles. "Q. Do you recall how far it was from Mrs. Car den's house to the nearest point on the road? "A. Six-tenths of a mile.

REDIRECT EXAMINATION "By Mr. Allen : "Q. Do you recall how far it was from Phoenix to the railroad ~bridge where the aecident happened? "A. Three miles."

It will thus be observed that Dobynspeck's corner where Mrs. Carden says the car stopped is exactly eight-tenths of a mile from the point of the accident; that Mrs. Car den's house is 1.1 miles from the point of the accident, and that Mrs. Carden's house is six-tenths of a mile from the nearest point on the road over which the car passed by her house. Please note that Mrs. ·Carden said that she could give no estimate as to how fast the car was going. Please bear in mind also that she said she could not run a car herself; that she had never timed a car; that she had ridden in a car only a few times; that she could not tell when a car· was in low, high, or intermediate gear; that she stated on her first examination on the subject that she could not say whether the car took, one, two or three [ 66 ]

minutes to cover the distance from Dobynspeck's corner to the point of the accident. In her present testimony, she says-

"It could not have been a half minute, it was just going as rapidly as it could."

Now, for purposes of easy calculation, let us assume that the distance from Dobynspeck's corner to the bridge was a mile instead of eight-tenths of a mile. Mrs. Carden :first testified that she could not say whether the car took one, two or three minutes to cover that distance. If it took one minute, it was making sixty miles an hour; if it took two minutes, it was making thirty miles an hour, and if it took three minutes,- it was making only twenty miles an hour. On the other hand, if her present testimony is correct, and "it could not have .been more than a half of a minute, then the car was travelling at a rate of at least 120 miles an hour. Please remember that this woman was in her bed, inside of her house, six-tenths of a mile from the nearest point on the road where the car passed. Now which testi mony was the· jury to accept; that to the effect the car was going twenty miles an hour? ; or that to the effect that the car was going thirty miles an hour?; or that to the effect that the car was going sixty miles an hour?; or that to the effect that the car was going 120 miles an hour?; or, was the jury at liberty to attach no weight whatever to such testimony? We think the question answers itself. When the jury discredited such testimony as that, we submit that the court cannot legally say that such testimony is of a character that will admit of but one inference, and that is that the car was being driven at an excessive rate of speed. Nevertheless, the court says, in its opinion- r s7 1 - "It (referring to the car) passed the house of Mrs. Carden who lives near the road, and near the point of the accident, going at a very fast rate of speed." We most respectfully ask, with the greatest deference for the views of this court, does the court mean to say that, considering this question under the demurrer to the evi dence rule, the testimony of Mrs. Carden points so difinitely and conclusively to the fast driving that fair-minded men can draw no other inference therefrom? If that is the law of this State, we submit that no human being can ever present a case free from contributory negligence regardless of what the circumstances may be. If a person who has never driven a car, and does not know when it is in low, high, or intermediate gear, can lie in the middle of the bed, in the middle of the night, six-tenths of a mile from the road and ·conclusively establish contributory negligence on the part of the driver of a car, merely by the sound of the car, and her estimate of the time it took to go from one given point to another, then every one is at the mercy of any person who may choose to so testify, because, even though the jury may discredit such testimony, the court, as a matter of law, says that it establishes fast driving. But, says the court- "There is evidence tending to show that the party passed Charlotte Court House a short time before the accident going at a terrific rate of speed." The only evidence tending to show that this, or any other car, passed Charlotte Court House at a terrific rate of speed is the evidence of A. B. Williams, found at pages 63, 64 and 65 of the record, from which we quote as follows: [ 68 ]

"Q. 'The night that this accident occurred did you see or hear a car pass through there by your place? "A. Yes, sir. "Q. What time was it? "A. Somewhere about three o'clock. "Q. How was that car running? "A. I never heard one run so fast in my life. "Q. Did you see it? "A. No, sir, I just heard it coming from towards Keysville, it sounded like an aeroplane. "Q. Did it keep on going by that same way, like an aeroplane? "A. Yes, sir." CROSS-EXAMINATION "By Mr. Allen: "Q. Could you hear it pass Phoenix? · "A. No, sir, I could not hear that good. "Q. Did you hear it when it left Keysville? "A. No, sir, I heard it coming and around here towards thE' c:;chool hOI!se? "Q. Motor whizzed like an aeroplane? "A. Yes, sir. "Q. You didn't see it, did you? "A. No, sir. "Q. It could have been an aeroplane? "A. I never saw one run on the ground. "Q. You never rode in one, did you? "A. Never saw one ·standing still in my life. "Q. Do you know whether it was running in low, high, or intermediate? [ 69 ]

"A. Is the motor in high gear when it is run ning fast? "Q. The motor runs mighty fast in low gear sometimes. "A. I didn't know that. "Q. Didn't know the motor runs faster in low gear than it does in high? "A. I don't know anything about a ar, I just know the sound of them. "Q. You never judge the speed by the sound? "A. I always thought that it made a different sound when it run fast. "Q. You never made any test of it? "A. No, sir. ''Q. And you could not tell how fast a car was going unless you timed it when it come into your hearing and when it went out? "A. I don't know as I did it that way. I don't know what kind of a car it was-the reason I got up whoever was running it was squalling and holler ing right there at the hotel and I knew it was an automobile from the sound and that is the reason I got up."

We respectfully ask: were the jury obliged to believe this testimony? They saw the witnesses testify; observed their demeanor, and were in position to give their testimony such credit as it was entitled to. Certainly, it cannot be said that this testimony is of such a character that fair-minded :men can reach only one conclusion, and that is that the car in question was the one that A. B. Williams heard, and that his judgment as to the speed at which it was travel ing is conclusive, althoug~ he merely he~rd the ear and ( 70 ] does not know enough about cars to know whether the motor runs faster in low gear than in high. Moreover, R. •C. Harvey testified, pages 66 and 67 of t~e record, as follows:

"Q. What time did you meet a car about two miles this side of Phoenix? "A. Somewhere about three o'clock, I don't recol- lect. just exactly what time. "Q. Do you know what kind of car it was? "A. Chevrolet. "Q. Could you tell who was in it? "A. I thought it was some boys, two on the front seat and two on the back seat. "Q. How was that ear running with reference to speed? "A. It was running fast, I drove off of the road for it to pass. "Q. Did it approach you running at a fast rate of speed? "A~ Yes, sir. "Q. Did it pass on by running at a fast rate of speed? "A. Yes, sir. "Q. Could you estimate for the benefit of the jury about how fast that ear was going when it passed you? "A. Running about as fast as it could go, when it ;went over the bottom it was just like a Ught coming and going, and I drove over to the side for it to pass. •~Q. What was the condition of the lights on that car? [ 71 ]

"A. Didn't have but one light. "Q. Do you recall which light? "A. I think it was the right light, the one that was away from me."

It will be observed that the car which Harvey saw had just passed ·Charlotte Court House; that the hour of the night at which he saw the car corresponds about with the hour at which Williams heard a car pass through Charlotte Court House. It will be observed further that Harvey says that the car which he saw, and which was running very fast, had only one light; whereas, all of the witnesses, those for the plaintiff, and those for the defendant, say that the car in question had two good lights. On page 121 of the record, Mr. Cross testified as follows:

"Q. Did the car have lights on it? "A. Good lights. "Q. One or two lights? "A. Two lights. "Q. With reference to the degree of brilliancy, what. would you say as to the kind of light the car was giving? "A. They were very good lights, they were bright. I noticed particular that I could see it from th~ top of the hill to down where I was sleeping." Mr. Hayes testified on page 90 of the record: "Did you observe the lights on the car? "A. y . es, s1r. 1 "Q. Anything make you particularly observe them? [ 72 1

"A. No, sir, only he was going by there with both lights burning on the car." Now, observe that Harvey, on page 67 of the record said: "One of them hollered at me as they passed," And further, on page 66 of the record- "Q. Could you tell who was in it (referring to the car)? "A. I thought it was some boys, two on the front seat and two on the back seat." Now, refer to the testimony of Cross, at the top of page 122: "Q. Were these people (referring to the car in question) making any noise or traveling in an or derly way? "A. They were talking in an orderly manner but making no unnecessary noise." We respectfully submit, first, that the jury had a right to disbelieve altogether the testimony of Williams that the car passed Charlotte .Court House at a terrific rate. of speed, because the car was not sufficiently identified by Williams and the circumstances under which he judged its speed were such as to make his testimony unworthy of credit; and, secondly, because all the evidence tended to show that the car which Williams heard was the one light car which passed Harvey moving at a terrific rate of speed ... Williams says that the occupants of the car when it passed Charlotte Court .House were boisterous. Harvey says one of the oc cupants ·of the car that passed him hollered at_ hi~ as the car passed. Harvey also says that he thought there were four ·boys in the car, two on the front seat and two- on the [ 78 ] back seat. The car in question had a boy and a woman on the front seat, and a boy -and a woman on the baek seat. But there is another point of view: Mr. I. J. Boykins, tes tifying on behalf of the defendant, at page 57 of the rec ord, said: "Q. Do you recall a year ago today Tom Shook coming to. your garage? "A. Yes, sir. "Q. What time did he come there? "A. Somewhere about one o'clock in the morn- -ing. "Q. That was Monday morning, wasn't it? "A. Yes, sir, I think it was. "Q. Or Sunday night. "A. -Monday morning -at one o'clock, and left about-two." On page 121, Mr. Cross testified on this subject as follows: "Q. Did you see. a car eoming from Phenix and pass over that crossing in the night time (referring to the crossing ~t Phenix)? "A. Yes, sir. "Q. About what time? "A. About· 8:20. And on page 122- "Q. You say that was about 8 :20? "A. ;Yes, sir. "Q. What time was the train due at Phenix? "A. At 8:49. "Q. Mr. Cross, Mr. Boykin testified that this · car left Keysville· about two o'clock. What is the ·distance between Keysvill_~ and Phenix? /

[ '14 ]

"A. 17 or probably 18 miles. "Q. And what time did you say the car passed Phenix? "A. 3 :20."

It will thus be· observed that the car arrived at Keysville about one o'clock and left about two; that it got to Phenix at 3 :20; that Keysville and Phenix are only seventeen or eighteen miles apart. The car thus took one hour and twenty minutes to run seventeen or eighteen .miles. A~ cording to the testimony of Mr. Childress, page 128 of the record, the point where the accident happened is exactly three miles from Phenix. According to the testimony of Willie Rossey, page 123 of the record, the train was due at Phenix at 3 :49, and the car passed just before the train came. We quote from his testimony as follows, page 124 of the record: "Q. Was it driving fast or slow? "A. Fifteen or twenty miles, plenty slow to make the curve (there was a curve earning down to the station). "Q. Was it being driven in a reckless manner? "A. No, sir. "Q. Were the people boisterous, cutting up in any way? "A. ·No, I never heard any noise from them at all." We most respectfully ask the court if the jury did not have the option to believe the testimony of Willie Rossey and Cross· who saw the car within three miles of the acci dent, and say it was proceeding slowly, and to discredit the testimony of Williams and Mrs. Carden? It will also be [ 75 1

remembered that Tom Shook, called on behalf of the Rail way ·Company, testified that they <;trove slowly. We submit that the foregoing testimony, with reference to the speed of the car, was certainly sufficient to at least make a case where reasonable minds might differ, and that the court cannot legally reject this testimony, and accept that of Wil liams and Mrs. Carden. It must also be remembered that according to the uncontradicted testimony, the car took an hour and twenty minutes to run seventeen or eighteen miles. Every witness who saw this car and testified, said it was proceeding slowly, and in an orderly manner, and the time that it consumed to make the trip is conclusive of that question. On the question of the speed of the car, the court gave the following instruction, with objection from the Railway Company, page 151 of the record:

"The court instruets the jury that if the railway company relies upon excessive speed on the part of the said Rakes at the time the plaintiff's intestate received the injuries, which resulted in her death, as constituting contributory :negligence, then it must appear from a preponderance of the evidence direct or circumstantial to the ·satisfaction of the jury that Rakes was driving at a rate of speed in excess of that at which a person of ordinary prudence, care and caution, would have driven under ordinary or usual circumstances, and that such excessive speed contributed to or caused the accident in which plaintiff's intestate lost her life."

We submit .that this instr~ction submits the issue to the j~ry and that the jury's verdict thereon is final and con clusive. [ 76 ]

Fifth Sentence.

"The driver of the car was addicted to the use of intoxicants, and an escaped felon on his way to aid in the escape of the husband of the deceased, who was then confined in jail." We most respectfully submit that the fact that the driver of the car was an escaped felon aild on his way to aid in the escape of plaintiff's intestate has no bearing on the issue of ·contributory negligence. The law_ on this subject was given to the jury by Instruction D, record, page 151, whieh reads as follows: "The court instructs the jury that it is no bar to recovery in this case that Rakes has been convicted of a criminal offense and was escaping from prison, and that plaintiff's intestate was assisting him, un less it appears from the greater weight of the evi dence, direct or circumstantial, that in thus attempt ing to escape, the said Rakes was not, at the p<>int of the accident, exercising ordinary care and pre caution for his own safety and the safety. of the plaintiff's intestate, and that such failure to exer cise ordinary care and precaution contributed to the accident in .which the plaintiff's intestate lost her life. The court further instructs the jury that the defendant railway company owed the plaintiff's in testate the same duty in the premises that it owed to other persons .travelling over said public high way."

'This instruction was so plainly right that the defendant inter:Posed no objection, ex:cepting a general objection to:au [ 77 ]

the instructions on "the ground that the evidence in this case does not support the said instructions, and that the evidence is not sufficient to take the case to the jury." Rec ord, p. 152. The opinion of the court sustains the trial court in overruling this general objection and holds that- "Due to the failure of the defendant to erect and maintain such necessary structures as would afford ample protection to the travelling public at the point of accident it was a matter of law guilty of action able negligence."

So the defendant is left without a single objection to this or any other instruction. Indeed, Instruction D is unques tionably the law, and counsel for the defendant never ques tioned its correctness, either in the trial court, or in this court. No doubt, this court, in an effort to effectuate its idea of justice between the parties, was unconsciously influ eneed ·by the character of the people involved, to break away from the land marks of the law of contributory neg ligence. Their character was admissible in evid,ence before the jury on the q'ti.IZntum of damages, and the verdict was for only one-half of the small amount allowed by statute. We most respectfully, but earnestly, submit that this is a matter which a court should not take into consideration in passing on the question of contributory negligence. Coun sel for the Railway Company, no ·doubt, ~arefully looked into this matter and were unable to present, as a bar to the action, the fact that the driver of the car was fleeing from justice and that the husband of the plaintiff's inter tate was a eonvicted felon. Nor did the Railway Company urge as a defense the fact that the plaintiff's intestate was [ 78 ]

assisting Rakes, the driver of the car, in making his escape. Nor was the Railway Company able to present as a bar to the action the fact that the plaintiff's intestate would have assisted her husband in making his escape had she arrived in Lynchburg. These facts did not make the plaintiff's in testate an outlaw. They did not deprive her of the pro tection which she was entitled to at the hands of the Rail way Company. Counsel for the Railway Company do not even contend that these facts deprived the plaintiff's in testate of the benefit of the law of negligence, and we re spectfully submit that the court ought to consider this case on the issues of negligence and contributory negligence, wholly irrespective of the facts mentioned. It is perhaps natural for a court of conscience to be unconsciously influ enced by such facts in an effort to accomplish what it re gards as justice. However, in passing, we should like to say that God alone knows what justice is. The finite mind can only follow the established rules of law which are de signed to accomplish justice between man and man. When we depart from these long established rules and endeavor to carry out the idea of justice independently of such rules, we are more likely to bring about a miscarriage of justice. Tom Underwood, the husband of the plaintiff's intestate, has paid the penalty for the offence which he committed. Rakes was also paying the penalty for his offence, and had he not been killed, he would, no doubt, have been caught and finally punished for the additional offen·ce of escaping from jail. Mrs. Underwood, plaintiff's intestate, was sub ject to the penalty of the law for assisting him to escape, but that penalty was not death. Tom Underwood, her hus band, has, at this writing, completed serving his sentence. Rakes has paid the penalty with his life, and so has the [ 79 ]

plaintiff's intestate. While they were guilty of offences whieh cannot be condoned, no one will contend that they deserved the death penalty. If plaintiff's intestate was de prived of her life as a result of the negligence of the Rail way Company, we submit that the issue of contributory negligence should be decided by this court, a court peculiarly sitting for the correction of errors, irrespective of the char acter of the parties, and the offences which they committed. With reference to the statement that "the driver of the car was addieted to the use of intoxicants," we quote In struction B given without objection (Rec. pp. 150-1):

"The court instructs the jury that if the defend ant company relies upon the alleged drunkenness of Rakes as constituting contributory negligence, be fore the jury can find against the plaintiff on that ground, it must appear from a preponderance of the evidence, direct or circumstantial, to .the satis faction of the jury, that at the time of the aecident Rakes was so intoxicated that as a result thereof, he did not exercise the care and prudence ordinarily . exercised by an ordinarily prudent and sober man, while traveling under ordinary or usual circum stances, and that such want of care on his part di rectly contributed to or caused the accident in which plaintiff's intestate lost her life."

This instruction presented the law to the jury and they resolved the issue in favor of the plaintiff. Under the authorities already cited, this court cannot set aside the verdict of the jury and reverse the trial court on this issue if there is any evidence to sustain this finding of fact by the jury. [ 80 ]

In Ditchett v. Spuyte'fll. DuyviZ, etc. R. R. Co., 67 N. Y. 425- "There was evidence tending to show tha~ the de ceased was intoxicated at the time of the accident. * * * "It is essential to the defense, founded on the negligence of the party injured, that it should ap pear that the particular negligence in question has, in some manner, contributed to the injury for which the action is brought. The mere fact of intoxica tion will not establish want of ordinary care. The jury must determine whether the intoxication con tributed to the injury, and, if it did not, it is of no importance."

In Mott v. Davis, 111 S. E. 603, (W. Va.), it was held that it was error to reject an instruction proposed by the plaintiff, based on conflicting evidence, telling the jury that though they may find the employee had taken a drink or so of liquor before mounting the moving train that injured him, they could not take that fact into consideration, un fess they believed that he would not have fallen under the . train had he not drunk the liquor.

In Hughest v. Chicago, etc. R. Co., 129 N. W. 956, it was held that an instruction that a passenger injured while alighting could not recover if he was intoxieated, was prop erly refused, as making any degree of intoxication contribu tory negligence as a matter of law. In the course of the opinion, it was said that intoxication is not alone a bar to recovery, unless by reason of such intoxication the party injured failed to exercise the ordinary care of a sober [ 81 ]

man, or is unable by reason thereof to take the usual and ordinary precautions to avoid danger. To the same effect are the following cases: Fister v. West Virginia, etc. Co., 19 S. E. 578; American Bauzite Co. v. Dunn, 178 S. W. 934; Meyer v. Pacific R. Co., 40 Mo. 151; Central Ry. & Banking Co. v. Pki7iXJ,zee, 21 S. E. 66; Wabash Ry. Co. v. ThomcuJ, Ill. Ap:p., Volume 94, page 82. In this connection it must be remembered that a state of sobriety is the· normal condition. It is the condition which is }?resumed to exist as to every man in any given case, and this presumption, like the presumption of innocence, stands in favor of a party in the place of proof. 1 Jones on Ev., p. 424. Let us now examine the testimony to determine whether there was su,fficient evidence before the jury to justify them in their finding of fact that Rakes, the driver of the car was not, in the language of the instruction, "so intoxicated that as a result thereof, he did not exercise the care and pru dence ordinarily exercised by an ordinarily prudent and sober man, and that such want of care on his part directly contributed to, or caused the accident."

Tom Shook, called by the Railway Company, was asked, at page 79 of the record:

"Q. What was Mrs. Underwood's condition that night, was she drunk or sober? "A. She was sober. "Q. What was Rakes' condition? "A. He was sober, too." On pages 84. and 85 of the record, Sam Ashworth, on cross-examination by counsel for the plaintiff, testified: [ 82 1

"Q. Did you go down there and see Rakes "A. Yes, sir, I was the first one to take hold of him. "Q. Did you smell any liquor on his breath? "A. No, sir. "Q. How close did you get tl) his mouth? "A. I caught hold of him under his arm. "Q. You were right over his face? "A. He was lying flat of his back. "Q. And breathing hard? "A. Yes, sir. "Q. And you never smelled any liquor? uA·. I never thought about it. "Q. You are sensitive to smell, you would know that odor if you came in contact with it? "A. Yes, sir, I think I would :~now it." Doctor W. 0. Tune, the physician who was summoned to render first aid, having ibeen first called to testify by the defendant, was recalled by the plaintiff ;for cross-examina tion at pages 119 and 120 of the record. !He testified as follows:

"Q. You got your head down 1;o his mouth to his breath? "A. I reached down to make the examination of him to run my hands around in there to see if he was seriously injured. "Q. Was he breathing hard? "A. He was suffering. "Q. Groaning? "A. Yes, sir. "Q. Tell the jury whether yo\t smelt any -liquor on Rakes during that examinatiol1. [ 831

"A. I didn't. I was rushing to fix up the man's arm in 10 minutes and give him a hypodermic. "Q. The idea of liquor wasn't suggested to you .at all? "A. No, sir. "Q. Mr. Reid, the passenger conductor, says that he told you that Rakes was drunk? "A. If he did, I have no recollection of it."

Reid, one of the employees of the Railway Company, had already testified at page 87 of the record: ·

"Q. Did you tell Doctor Tune anything about Rakes drinking or being in a drunken condition? "A. I told him I smelt whiskey on his breath." Notwithstanding this, Doctor Tune says Reid did not tell him anything of the kind, and that he did not smell whiskey on Rakes' breath. H. H. Clark, called by the Railway Company, testified on the subject as follows, pages 89 and 90 of the record: "By. Mr. Hall: "Q. Did you help handle Rakes? "A. No, sir. "Q. How close did you get to him? "A. I was right up on his side. "By Mr. Allen: "Q. And you say you got up by the side of Rakes? · "A. Yes, sir. "Q. About as close as you are to Mr.. Wingfield? [84·]

"A. Yes, sir. "Q. And you were standing right by him? "A. Yes, sir. "Q. Did you smell any liquor on him? "A. No, sir. "Q. You would know the odor of liquor if you had smelled any on him? "A. Yes, sir, I have not smelt any for a good lit tle while, but I guess I would know it."

It is true that Reid for the Railway ·Company testified that Rakes' breath smelled of whiskey, but the j.ury had a right to believe Doctor Tune, Mr. Ashworth, Mr. Clark, and Tom Shook, and disbelieve Reid, and this court, considering the matter as upon a demurrer to the evidence, cannot con sider the testimony 'of Reid or that of any other witness that is in conflict with the foregoing testimony offered by the plaintiff. Moreover, even though Rake's breath may have smelled of whiskey, that is not conclusive proof, which the jury were bound to accept, showing that Rakes was so intoxicated that as a result thereof he did not exercise the care and prudence ordinarily exercised by an ordinarily prudent and sober man. It is not a question of whether Rakes was under the influence of whiskey-the question is whether he exercised ordinary care. If he was sufficiently under the influence of whiskey to cause him to fail to exer cise ordinary care, then the fact of his drinking would con stitute contributory negligence. As stated in the New York case cited, "the jury must determine whether the in toxication contributed to the injuries~ and if it did not, it is of no importance." In this case, not only is there a total failure to show that intoxication contributed to the injury there is no credible evidence that Rakes was intoxicated at ------.,

[ 85] all. Waiving the evidence of the defendant on this subject in conflict with that of the plaintiff's, which must be done, there is no evidence whatsoever before the court that Rakes was even drinking. We conclude our discussion of this phase of the case with the following quotation from Berry on Automobiles, Third Edition, page 858, Section 914: "Intoxicated person. The mere fact that one goes on the highway in an intoxicated condition, and is injured by falling over an embankment, is not con clusive that the negligence of the municipality was not the proximate cause of his death, or that his own contributory negligence was the proximate cause of the accident. "In an a-ction where a traveler seeks to recover for injuries incurred on a defective highway, the fact that he was intoxicated, and the degree of such intoxication, at the time of the injury, is a relevant fact, bearing on the question of contributory negli gence. " 'While the status of the parties is not affected by the drunkenness of one of them in a case of this character, unless- by reason of such intoxication the one injured failed to exercise such care for his own safety as might be ordinarily expected of a sober person of ordinary prudence under similar circum stances, and but for such failure on his part the in jury would not have happened, yet the jury may con sider the fact of intoxication as a circumstance. along with other evidence.' n In the case of Joknson v. State, 178 N. Y. S. 701, involv.:. [ 86 1

ing facts almost identical with those in the instant case, the driver of the car was killed, while the only other occu pant at the time of the accident was asleep. Osborne re membered nothing from the time he closed his eyes until he regained consciousness after the accident: He testified that they had taken several glasses of beer shortly before the accident. With reference to the question of contribu tory negligence, the court said:

"We think the question of contributory negligence was also for the judge. .Osborne testified that they had two or three small glasses of beer while at Elmira, but that they were not at all intoxicated. There was also some testimony as to the emergency brake being out of order; a screw was loose and rattled. Johnson had but 57 feet to go before his machine was over the bank. The witnesses agree that the night was so ·4ark that a person could see but a few feet without a light. He may have sup posed he was at some other point in the road. He could not .have known that he was at this point of danger."

Simth Senten;ce. "The curve in the road just before reaching the bridge was a curve of only 32.20 degrees." We have already observed that while the curve was only a 82.20 degree curve, Mr. Daniel, the civil engineer, testified that this is a stiff eurve. We have quoted, in detail, the testimony showing that as a· result of this 82~20 degree c~rve, and the failure of the Railway Company to ereet any signs or barriers, there was every appearance that the [ 87 ] road continued straight. The fence along side the road, on the right edge th~reof, continued straight to a high post on the edge of the cut just 18.2 feet from the right bridge post. This 32.20 degree curve in the road to the left was so close to the bridge that the open space between the right bridge post and this fence post indicated to a traveler by night that the road continued straight between these two posts. The fence was down at the opening and wagons had been turning to the right at the curve and going through this open space down the eompany's right of way. As stated in Johnson v. State, 175 N.Y. S., 299:

"These eonditions were especially misleading at night. In the nightime, with the ordinary auto lamps shining ahead, creating a sort of tunnel of light and leaving the space outside that tunnel in darkness, and that tunnel showing a clear fairway forward between the tree and the blacksmith shop over what appeared to be the roadway itself, and not disclosing the turn to the left until the machine was already into or past the turn, a combination of conditions obtained which might easily cause seri ous accidents." * * * In Berry on Automobiles, at page 890, Section 955, it is said: "955. Missing bridge at night and driving over embankment. The deceased was killed when he drove his automobile over the bank of a stream at the side of a bridge, and suit was brought to recov~r for his death against the county commissioners. The accident occurred at night, when there -was no moon, the wind was blowing, a little snow was fall- [ 88 ]

ing, and the ground was covered with snow. De ceased had in his automobile two women and two men, and was driving about 25 miles an hour. The bridge, which was 40 feet. long, was in line with the roadway to the west, but not to the east. The road way leading to the bridge from the east was gener ally 40 feet wide, 16 feet of which was macadam ized. Within 20 feet of the bridge the roadway nar rowed to the width of the bridge, which was 14 feet. The traveled portion of the road included not only the macadamized part, but level ground on either side thereof, and when snow was -on the ground the · surfaced and the unsurfaeed portions were indistin guishable. An automobile driven westerly toward the bridge along the north side of the road would, if continued in a straight line, miss the bridge. De- . ceased approached the bridge from the east, and drove in a straight line along the north side of the road, missed the bridge, except that the left rear wheel of the automobile struck the north girder of the bridge, and went over the embankment to his death. There was no guard rails at this place to prevent such an accident. It was held that the jury were warranted in finding negligence on the part of defendant, and that the deceased was not ·contribu torily negligent. Judgment for plaintiff was accord ingly affirmed. "In reference to the safety of the bridge the court declared: 'The purpose of the ·bridge was to carry traffic brought up· to it by the highway over the stream.· It was so located and constructed, how..; ever, with respect to the stream and to the high way, that travelers using the highway with due care [ 89 ]

might miss the entrance and plunge over a danger ous declivity. Therefore the bridge itself was incomplete and defective in construction.' "In regard to the question of contributory negli gence, the court said: 'It is argued that the plaintiff should not have been driving so fast that the entire distance he could see was required for stopping the automobile. The deceased had no occasion to antici pate stopping. He was on the right hand side of a broad highway and could see far enough to turn aside if confronted by visible objects. If a barrier had been extended a few feet from the corner of the bridge he could have made the turn necessary to put him in line with the bridge and the road be yond without reducing speed at all.'" The foregoing quotation from Berry fits the facts in this case like a glove does one's hand. If this respectable au thority is worthy of consideration at the hands of this court ....;_and we submit that it is,-then, after a jury in a fair trial, on an identical state of facts, have rendered a verdiet that the plaintiff's intestate was not guilty of contributory negligence, this court cannot lawfully set aside the verdict and enter up judgment for the defendant. To do so would be to wholly discredit this distinguished author as well also as to break away from a long line of cases .in Virginia on the subject of the effect of a verdict of a jury in the plain tiff's favor on the issue of contributory negligence.

Seventh Sente'fbCe. "The bridge had a guard rail on each side com posed of three board planks which were discern able for a distance of 840 feet.'' [ 90 1

The "guard rail" referred to was not a guard rail at all; it was merely the railing of the bridge itself. It's object was to keep travelers from falling off of the bridge after they had once entered it. This railing was no protection or warning whatever to travelers approaching the bridge. As to one being able to see this railing at a distance of 840 feet, evidently the court has reference to visibility in open daylight. It is certain that in the night time as long as the car was moving in a straight direction along the right side of the road next to the fence, no part of the bridge could be seen at all. We have already quoted from the tes timony of two witnesses to the effect that they drove their cars to the point of the accident at night for the purpose of determining just how this accident happened. We quote again from the testimony of Mr. Dempsey, bottom of page 39 of the record:

"I drove there just purposely to see where my light would be shining at the point of this curve and my light focused in the exact direction that this fellow took, judging from the tracks. "Q. Where did it focus? "A. Almost between this post that was standing 20 or 25 feet from the corner of the bridge stand ing at the point of the curve about where the car left the road where it started leading off the road. I stopped my car there to see where my light would be." And Mr. Cross, on page 121 of the record said: ''I stopped my car about where their car began to cut in the ditch to see where the lights would reflect; they were focused on the right hand post of the [ 91 ]

bridge and a fence post about 17 or 18 feet to the right_ of the bridge. * * * You could not see the road, you could not see the curve in the road. Your lights would focus straight ahead. * * . * You could not see the traveled part of the road; there was a curve there that you could not see it, you could not see the bridge. * * * "Q. You could only see between the bridge post and this post that was off to the right of the bridge? "A. Yes, sir. "Q. And you could not tell whether the road curved or ran straight on? "A. Judging 'from the lights and what you could see there was nothing to indicate a curve. "Q. My question is that you could not tell whether the road ran straight or whether there was a curve in it? "A. I could. by stopping, but if I had been driv ing at a rate of 20 or 25 miles an hour, I probably would have drove with my lights. "Q. And would not have seen the curve in the road at all? "A. Not until I got around the curve." There was no contradiction of the foregoing testimony. Indeed, a large part of the testimony of the character of that quoted was brou~ht out by counsel for the defendant on cross-examination of plaintiff's witnesses.

Eighth Sentence. ''At the end of the bridge there was a brace which was 6 inches ·wide, 2 inches thick and fastened to the bridge by boat spikes." [ 92 ]

The brace here referred to was nothing more nor less than the corner brace to the bridge post. The so-called boat spikes were merely nails about the size of twenty penny. The bottom part of the brace was nailed to a sill and was probably 2% feet from the foundation of the bridge on the ground. The top of this brace was no further away from the bridge than the top of the bridge post to which the end of the railing was fastened. It reached from the ground diagonally to the top of the bridge post, and could not possibly be seen at night by a car until it began to make the curve, and then, of course, it was too late.

Ninth Sent6'fiJ.Ce.

"This barrier without doubt could be discerned at lease 80 feet from the bridge." There was no "barrier" at all at this point. The corner brace is evidently what the court refers to. Again the court must have reference to visibility in open daylight. It is certain that this brace could not be seen at night so long as the car was traveling straight on the right. side of the road headed straight for the open space between the fence post and the right bridge post.

Tenth Sentence. "It also appears that there was a ditch or depres sion at the side of the road which was ten inches deep at a distance of 78 feet from the ·bridge."

We have already discussed all of the testimony in refer ence to this so-called ditch or depression. It must be per- [ 93 ]

fectly dear that it was nothing in the world but the grad ual incline of the road. There was just as much of a ditch on one side of the road as there was on the other. Ash worth, the man who had charge of the road at that time, testified that there was "practically no ditch at all." The ten inches referred to means ten inches lower than the crown of the road. That would hardly be discernible in a broad road 30 feet wide. Many of the roads are much lower than that on the extreme right and left. They are purposely so built in order that the water may run off and not stand in the middle of the road. We have already quoted form the testimony of the witnesses for the plain tiff who testified positively that the car did not run in this so-called ditch."

Eleventh Sentence.

"At a distance of 15 feet from the bridge the depth was about 2 feet."

This is altogether a mistake. There was no ditch at all within fifteen feet of the bridge. The road was simply slightly raised, that is, built on a slight fill. To express it differently, this little fill was nothing more nor less than the approach to the bridge itself. 'The little curve was on the right of way of the Railway Compnay~ and the fill was the approach to the bridge. There was a drop off or in cline about two feet to the right as the road curved, and this drop off, within fifteen feet of the bridge, was the identical spot at which the car left the road. It did not leave the road before it reached this curve and drop off. [ 94 ]

T'Welfth Sentence.

''While some of the witnesses for the plaintiff state that they did not see a car tra~k in this ditch, we think it is conclusively shown by affirmative evi dence that the automobile of the deceased ran into this ditch or depression for a distance of 78 feet before it struck the bridge and was precipitated into the railroad cut."

By what "affirmative" evidence in the record is it "con clusively shown" that the car ran into this co-called ditch 78 feet before it struck the bridge? We have already quoted Mr. Underwood's testimony that the car was merely on the right hand side of the road; that- "It was in the roadway back this way from where it started to make the turn. I traeed the track back where it made this turn; it crossed the road right there, the right hand track went out of the road. It was back this way where it was running straight, was over on the right hand side." Upon being asked by counsel for the Railway Company "Do you mean to say that the car track that you examined was in the road up to the bridge? "A. That it was in the road back from where it made the turn * * * I say it was on the right-hand side of the road. "Q. In the traveled roadway all the way? "A. As far as I traced it. "Q. Was the car track· in that low place that you call a ditch? [ 95 ]

"A. No, sir. "Q. Was not in there at all? "A. No, sir, so far ct8 I traced it to be certain. "Q. So it did not go out of the traveled roadway at all until it got at the bridge? "A. Right at this bend 'Where it made an effort to get on the bridge~ "Q. Just describe to the jury this turn in the ear track as you saw it on the ground? "A. Well, about 7 feet from the approach to the bridge, I suppose it struck this bridge post, it was running straight and when it got within 7 feet it made a turn, about like that (motioning) as quick. a turn as possible * * * and the track made a curve to get up on the bridge. That is as plain as I can speak it. . "Q. In other words, you say that at a point 7 feet from this approach that that track swung around in a curve in the direction of the bridge- that. is your testimony? "A. Yes, sir."

Mr. Dempsey, testifying for the plaintiff, said there was "no ditch to amount to anything." Furthermore, he said-

11There was no car tracks in the ditch place. "Q. Could this car track extend across the right of way in any place? "A. N:ot until it got nearly to the jumping off place that leads across it."

Mr. Daniel, the surveyor, testified, at page 44 of the record- [ 96 ]

"That the wire fence is right on the edge of the road·; and that the traveled portion of the road ex tends practically to the fence." lie furtherD[ore said that at the point vvhere the car vvent over is only 2 feet from the bridge. ·Again he stated that 20 or 25 feet back from the bridge, the ground becomes practically tke same as the road. Mr. Cross, testifying at page 136 of the record, stated positively that the automobile track did not get out of tke road. As vve have already stated, the only witnesses vvho testified that the ear track left the road' 78 feet before it struck the bridge, and ran into this ditch are Rassmussen and McDowell. The physical facts show that their testi mony cannot be true, as we have indicated above. In the first place, the car could not get out of the road on account of the fence. In the second place, if it had :gone out of the road as Rassmussen and McDowell said, and proceeded straight, it ·Certainly womd not have hit the bridge. There was a 32.20 degree curve in the road. If the car passed out of the road on the right side thereof, it would have had to make more than a 32.20 degree curve in order that the left front wheel might strike the inside of the bridge. The only testimony to the effect that the car left the road 78 feet from the bridge is that of Rassmussen and McDowell, testifying on behalf of the defendant, and that testimony has been demonstrated to be false. But let us here politely enquire: What right has the cou~ on this motion to set aside ·the verdict, to consider this ·testimony of the defendant's witnesses at all? Has the court, for the purposes of this case, overruled the long line of cases to the effect that a verdict of a jury approved [ 97 ] by the trial court must be considered in this court as upon a demurrer to the evidence, and that the evidence of the defendant in conflict with that of the plaintiff cannot be considered? This was certainly the rule until this deci sion was rendered on January 17th, 1929. Indeed, the rule seems to have been followed in other cases decided on the same day. Virginia Electric & Power Co. v. Evich, 146 S. E. -; Virginia, Electric & Power Co. v. Oliver, 146 S. E.-. And at the last term of this court before the pres ent case was argued, this court held in Litz v. Harman, 144 S. E. 477, point 6 of the syllabus:

"Where evidence in action for injuries to plain tiff struck by defendant's automobile was conflict ing as to whether defendant was on left or right side of road, and as to speed with which defendant was traveling, verdict of jury for plaintiff was conclu sive, unless trial court committed error of law."

Surely, it must have been the character of the parties involved that influenced the court to break away from all precedents, and, although considering the 'Case as upon a demurrer to the evidence, to disregard all the plaintiff's evidence in conflict with the defendant's, and decide the case upon the defendant's evidence, whereas, the exact re verse has been the rule in this court for more than one hundred years. Counsel for the Railway Company did not, in the trial court or in this court, urge, suggest, or insinu ate that the offences which had been, and were being, com mitted by the parties were sufficient to bar the action. There was no suggestion that the case was being tried on that theory. If, notwithstanding this, the court thinks that the case should be heard in this court on the theory that r------

[ 98]

plaintiff's intestate was an outlaw; that because of her of.; fences she had fopfeited her life; that she was not entitled to the protection of the law; that she might have been killed upon sight with impunity, and that hence when the Railway Company killed her by its gross negligence in maintaining a death trap almost in the edge of the public highway, the case is one of damnum absque injuria, then, the plaintiff has no more to say. It is certain that however heinous an offence it is to violate the prohibition law, no State has yet seen fit to prescribe the death penalty, and so long as that is true, the plaintiff cannot see how the killing of the plain tiff's intestate as a result of the gross negligence of the defendant ·ean be justified on the theory that she was a bootlegger, and engaged at the time in assisting another bootlegger to es_cape from jail. This question was put at rest in an instruction which was not objected to. The jury were told that it was no bar to a recovery that Rakes had been convicted of a criminal qffence, and was escaping from jail, and that plaintiff's intestat~ was assisting him, unless it should appear from the greater weight of the evidence, direct or circumstantial, that in thu:s attempting to escape, Rakes was not, at the point of the accident, exercising ordi nary care and precaution for his own safety, and the safety of the plaintiff's intestate, and that such failure to exer cise ordinary -care and precaution contributed to the acci dent. In the same connection, the court further instructed the jury, without objection, that the defendant railway com pany owed the plaintiff's intestate the same duty- in the _.premises that it owed to other persons traveling over said public highway. See Instruction D, page 151 of the rec otd. The law embodied in this instruction will have to be abolished before recovery can be denied in this case on the [ 99 ] ground that the plaintiff's intestate was an outlaw and not entitled to the protection. of the law.

We submit that the law was correctly laid down in this instruction. Counsel for the Railway Company thought so, for they did not object. We submit that this court, sit ting as a court for the correction of errors, cannot lawfully reverse the judgment because of the offences of which the parties had been guilty. To ascribe to such a doctrine would mean that no man could come into a court in a law a~tion, unless he could prove. that he had walked the 41straight and narrow path" from youth up. We are all sinners. None of us eonform either to the civil or to the spiritual law. We can be punished by the civil authorities, only when we violate the civil law. There is no authority in the courts to blend the civil and the spiritual together, and deny recovery in a civil case because a person has not lived the life that- one should live. It was proper for the jury to take into consideration the character of these par ties on the quantum of damages, and the amount of the ver dict- shows that this was done. We most respectfully sub;. mit that this court should review this record carefully, and reverse this judgment only for errors of law appare?lit on the face of the record, and that when the ease is approached and considered from that point of view, the judgment of the trial court will be affirmed.

Thirteenth Sentence.

"The physical facts show that as Rakes ap-. proaehed the bridge, he drove the car off the beaten path and through woods and bushes about a foot high." [ 100 ]

We repeat that this is a mistake. Surely, the court must have gotten this case confused with some other. No wit ness for the plaintiff or defendant testified that the car was driven through the woods and bushes. There was not a bush anywhere within the line of the road. Had the car kept straight between the right bridge post, and the fence post, it would not have left the road until it got within 15 feet of the bridge where the road made the curve. It could not have left the road until it reached that point, because the fence would have held it. The fence was not down ex cept right at the curve where the c~r went over. There were no bushes on the edge of the cut between the fence post and the bridge. These are physical facts that the jury and the trial court saw. The writer of this brief has doubtless passed by this point a hundred times in recent years. He passed over this bridge several times shortly before· the accident, and a number of times shortly after. He went there shortly after the accident for the purpose of making an investigation. The writer knows of his own personal knowledge that the evidence in support of the plaintiff's case, herein quote~, is absolutely true. If the court thinks that the facts are anything like those stated in the opinion, then we most respectfully state that the court is simply mistaken. If the court could just see this place itself, this rehearing would be granted, and the present opinion reversed. Thls writer has never passed a more dangerous place on a pubJi.~ highway. Any stranger trav eling over the road at night is in ~ave danger. The driver of the car and the plaintiff's intestate were residents of Lunenburg county. The point of the accident is in Char lotte. There is no evidence that they had ever passed over this road before. They had every right to believe that the road was straight and that they were not, by· following a [ 1()1 ]

straight course, going to run off an embankment into a cut 57 feet deep. The place where the accident in the F.arr CfJ,Se occurred is nothing like so dangerous as the place where this accident occurred. In the Farr Case the curve begins much further away from the cut than it does in the instant case. In the Fa,rr Case, the cut was only about one-third as deep, as it is in the instant case.

Fourteenth Sentence.

''That the car was running at a rapid rate of speed is, we think, demonstrated by the result both to the car and the bridge at the point of the acci dent."

Although the jury and trial court saw the result "both to the car and the bridge," and viewed all the surrounding circumstances and reached the conclusion that they did not" show contributory negligence, this court has undertaken to say that the result to the car and the bridge is conclusive evidence of contributory negligence, which the jury and the trial court could not reject. Is it the exclusive province of this court to say what weight shall be, attached to such testimony? If so, when did this court ever so decide before this case? · · Let us remind the court in this instance, that the law provides that the crossing shall be so constructed as "to admit of safe and speedy travel" thereover. See Sections of Pollard's Code, referred to in Virginian Railwaly Co. v. Fmrr, 136 S. E. 668. Speed restrictions at the time of this accident provided that a speed in an open country like that of 35 miles an hour was prima facie lawful. A traveler on a broad, straight road that was practieally free from traffic had a right to drive 35 miles an hour and· the Railway ·Company had no right to create this nuisance so close to the public highway and in the midst of such surroundings as· to lead a traveler directly into this 57 -foot excavation. As said in Berry on· Automobiles, page 884:

" 'It is a matter of universal knowledge that the uses to which streets and highways have been put have materially increased and broadened since the ' decision in the Lane Case. Powerful machines, ca pable of going 25 to 60 miles an hour and more, now commonly travel over our streets and highways; and while the old rule of 'ordinary care and pru dence' still is resorted to, in words, in determining the responsibility of persons and corporations as to negligence or contributory negligence, it means care and prudence commensurate with the increased danger to which the common use of such powerful machines subject the public.' * * * 'I am not un mindful of the force of the argument that a mu nicipality should not be required to guard against reckless drivers of heavy auto trucks and high powered automobiles; that question does. not arise here, and in any case the plaintiff, under such cir cumstances, would find himself confronted with the decision, as a matter of law, that he was charg~able with contributory neglgence; and unless reckless ness of the driver was present, the sign, barriers, and light would warn him in time to slow down and avoid going over the embankment.' " [ lOS ]

In the quotation taken from Berry, Section 955, it will J:>e observed that the deceased was driving his automobile at 25 miles an hour when he missed the bridge and went over the embankment. In regard to the question of con tributory negligence, the court said:

"It is argued that the plaintiff should not have been driving so fast, that the entire distance he could see was required. for a stopping automobile. The deceased had no occasion to anticipate stopping. He was on the right hand side of a broad highway, and could see far enough to turn aside if confronted by visible objects. If a barrier had extended a few feet from the corner of the bridge, he could have made the turn necessary to bring him in line with the bridge and road beyond without reducing speed at all."

Similarly, it may be said in this case. In broad daylight, one familiar with the road, can take the curve easily travel ing at twenty-five or thirty miles an hour. That is because the curve can be seen in the daytime far enough in advance of the bridge 'to enable one to begin to turn. At night the situation is very different. The lights create a sort of tun nel of light, leaving the spaJCe outside of that tunnel in darkness. That tunnel shows a clear fareway between the fence post and the right bridge post, and of what appears to be the roadway itself. The turn to the left is not dis closed until the car has already passed partly in to the turn, and then it is too late to make the bridge, because the road does not turn until it gets within 15 feet of the bridge. Now, if a car is traveling thirty miles .an hour, it is making forty-four feet a second. If, with the combination of condi- [ 104 ]

tions obtaining at this point, the curve will not be observed ~t night by a stranger until he actually runs into it, the traveler is left only a fraction of a second to make the turn. If he is traveling at even a moderate rate of speed, say fif teen miles an hour, it would not be possible to make the turn under those circumstan<:es.

We submit further that the court is indulging in ques tionable theorization when it conclusively fastens contribu tory negligence on one as a result simply of the damage to the car and the object collided with. That is certainly a matter about which reasonable men may differ. The writer of this brief knows of one instance which came under his personal observation wherein a car running only five miles an hour overturned a buggy and seriously injured the occu pant therein. The car in question belonged to the writer, and was started by a meddlesome boy while the car was in low gear, and the writer was on the ground. The car started off not much faster than a walk, but before the writer could get in it and stop it, it had run into a buggy, upset it and injured the occupant. Another instance which came under the writer's personal observation is where a car ran into a telephone post on the corner of a street, and broke the post squarely off. The car could not have been traveling at a rate of speed in excess of fifteen or eighteen miles an hour, because it was making a right angle turn at the time. It is not so much the speed at which an ob ject travels, but the force that does the damage. A car in low gear traveling at five or ten miles an hour would have broken the brace and knocked it loose from its fastening just as clearly as a car traveling at a faster rate of speed. The writer has just completed the trial of a ease where a motorcycle ran directly into the side of a. Dodge Sedan [ 105 J with such force· that it bent the steel door of the car six inches and bent the steel frame of the car one ineh.. The frame was made of hard steel and was about the size of one's arm with the coat sleeve on. The writer, represent ing the defendants, urged the trial court to hold that the force with which the motorcycle hit the car fastened con tributory negligence on the driver of the motorcycle, but the court refused to so hold. Will this court say on appeal that the physical facts of the steel body and frame of the car being badly bent conclusively establish contributory negligence on the part of the driver of the motorcycle.

Fifteenth Sentence.

"The automobile driven by Rakes was a light Chevrolet." This is true. The motorcycle, referred to, was much lighter. The fact that the car was light, made it very much easier to shatter. The only thing that was broken by the impact was the wheel, and that was shattered largely on account of the particular angle at which the car struck when it swerved.

Sixteenth Sentence. "As a result of the car striking the end of the bridge, a heavy 2 x 4 upright post fastened by spikes was lmoeked loose from its fastenings, the stanchion at the end of the bridge was broken and the left wheel ·of the car was shattered." We submit that far more damage than this is done every day to· cars in accidents and the drivers are not held guilty [-106]

of .contributory negligence as a result of such physical facts. These facts are matters about which reasonable minds may differ. It is utterly impossible to tell at what rate of speed a man is traveling simply by looking at the damage which has been done to the car, and the object that was struek by it. It is all a matter of speculation. It is certain that the same damage which was done to the car in the instant case will be done to most any car under the same circumstances traveling at a rate of twenty-five or thirty miles an hour. One could certainly not be considered guilty of contributory negligence as a matter of law because he traveled twenty five or thirty miles an hour on what appeared to be a broad, straight, smooth road that was free from traffic, where it is prima, facie lawful to travel thirty-five miles an 'hour. After all, is not this court undertaking to say what weight shall be given to this sort.of evidence? And has an appel late court, sitting as a court for the correction of errors, any right to do this? If it has, then it has ceased to be a court of appeal for the correction of errors of law but has simply become a jury to sit and weigh evidence and resolve conflicts therein.

In KeUy v. SckneUer, 139 'S. E. 275, Supreme Court of Appeals of Virginia, September 22nd, 1927, it is said:

"While conceding that the evidence is conflicting, .. it is, urged upon us by counsel that the conflict in Jhe testimony of the witnesses is controlled by cer tain physical facts disclosed by the evidence. The physical facts relied on are the tracks of the auto mobiles made upon the highway at and near the place of the accident. The evidence of the wit nesses who testified as to the Jocation of the tracks is not to our mind clear and convincing. The weight to be given physical facts when they demonstrate [ 107]

verbal testimony to be untrue is discussed in Nor folk & W. Ry. Co. v. Strickler., 118 Va. 158, 86 S. E. 824; Norfolk & W. Ry. Co. v. Crowe, 110 Va. 798, 67 S. E. 518; City of Charlottesville v. Jones, 128 Va. 682, 97 S. E. 816. "The jury having resolved all conflicts in the evi dence in favor of the plaintiff, this court is con cluded by the verdict of the jury, unless it is with out evidence to support it. "Viewing the case from the standpoint of a de murrer to the evidence, we are of the opinion that the evidence is ample to sustain the verdict, and the action of the trial court in entering judgment thereon is without error. We are of opinion, there fore, to affirm the judgment of the trial court.''

Now, as to the weight to be given physical facts, let us refer to the case cited in the foregoing quotation. In City of Charlottesville v. Jones, supra, after enumer ating the physical facts relied upon to discredit the verbal testimony, the court said:

* * * "all of which were facts or circumstances for the consideration of the jury, and whieh they, having viewed the scene of-the accident at the same hour of night and under conditions of cloudiness as nearly like those which existed on the night of the accident as were found practicable, were in a better position than this court can be to weigh and consider. By their verdict the jury, in effect, found that the alleged conflict with physical facts afore said did not in fact exist; and the evidence,-set forth in the statement of facts above is such that the ,----

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jucy were warranted in reaching such conclusion. "This is not a case where an admitted fact, or the testimony for a party to the cause, discloses a physical fact which is irreconcilable with some posi tion taken in another part or parts of such testi mony. "We, as a court, therefore, cannot say that this is a case to which the rule invoked as aforesaid is applicable. On the contrary, we are precluded by the verdict of the jury from so holding." A casual reading of the other cases cited shows that the instant ease is not one wherein the court can justly set aside a verdict because the "conceded," or "proven" physi cal facts, are in conflict with the finding of the jury. As stated by the court in the case of Kelly v. SckneUer, supra, "the physical facts relied on are the tracks of: the automo bile made upon the highway at and near the place of the accident." As to just where these tracks were, there is a direct conflict in the evidence, with the defendant's wit nesses testifying to a physical impossibility, to-wit: that the car left the road 78 feet from the bridge and proceeded straight and hit the bridge w·hich was just beyond a 32.20 degree curve! The only other physical facts relied on to show contributory negligence consist in the damage done to the bridge and the car by the collision. There is no met4od known to man whereby the rate of speed a;t whick the car was traveling Cam.l be accurately calculated from the damage done to· the bridge and the car. It is merely a matter of opinion. That being true, the inference to be drawn from such testimony is a matter for the jury. When the jury draws the inference that such evidence does not necessarily show that the car was traveling at an unlawful rate of [ 109 ]

speed, by what rule can this court better calculate the rate of speed and say that the ear was being driven at an ex cessive rate of speed? As said in Virginian Railway Co. v. London, 139 S. E. (Va.) 328 (331): "We conclude that the jury had a right to draw such conclusions as they did from all the circum stances in this case, and that this court has no right, whatever the weight of the evidence may have been, to set aside the verdict. Norfolk & Western Rail way Co. v. T. W. Thayer Co., 137 Va. 294, 119 S. E. 107." The doctrine, that courts will not allow verdicts to stand, although there may be evidence tending to support them, where physical facts demonstrate such evidence to be un true, is not applicable to a case like this where there is noth ing in the plaintiff's evidence, supporting his theory, which is "palpably untrue, or inherently impossible." Jo"ftn T. Griffin Truck Corporation v. Smith, 142 S. E. (Va.) 385. Plaintiff's theory of this case is as follows: That the road at the point of the accident, and for some distance in each direction therefrom, was perfectly straight and safe; that the Railway Company dug a cut about 57 feet deep across the middle of the highway, and spanned the same with a bridge for use of travelers in getting over the cut; that on the Phenix side of the bridge the public highway was changed so as to make a 32 degree curve within 15 feet of the entrance to the bridge; that the high way at this point was 22 feet wide while the bridge was only 17; that for some distance the road on the Phenix side is a perfectly straight, br~ad, road, until it reaches a point within about 15 feet of the bridge, where it makes a 32.20 [ 110 ]

degree curv~ to the left; that a wire fence was located almost at the edge of the road on the right hand side-so · · close to the road that a car could not get out of the road without running into the fence; that this fence was built on a straight line and followed the road until the road curved to the left within 15 feet of the bridge ; that at this point the fence continued. straight to a tall post made of bridge timber, planted directly on the edge of the eut; that in the night time the automobile lamps of a traveler's car, as he approached the bridge, and before reaching the curve, would focus directly between this fence post and the right 1- bridge post, thus forming a sort of a tunnel of light, leaving in darkness all objects to the immediate right and left; that there were no barriers, signs or anything within this tunnel of light to indicate to a traveler that the road made any turn within 15 feet of the bridge; that all indications pointed to a continuance of a straight road; that one travel ing at a moderate rate of speed, or at any rate of speed, allowed by law, under the circumstances, would be led to believe that the road continued straight between the fence post and the right bridge post; that the driver of the car in which the plaintiff's intestate was riding was deceived by this combination of circumstances into believing that the road continued straight between the fence post on the edge of the ·cut and the right bridge post; that, accordingly, he drove the car in line with the open space between these two posts, thinking, perhaps, they were the bridge posts; that this combination of circumstances, as well as the law of the road, caused him to drive on the right hand side of the road until he got close enough to see that the road did not continue straight between the fence ·post and the right bridge post; that, then, the moment that he observed that the road did not continue straight, he undertook to turn [ 111]

his car to the left, but succeeded in getting only the left front wheel on the inside of the bridge; that the angle at which the car was then undertaking to make the bridge caused the rear part to swerve around to the right and the entire car to fall down the embankment with the occu- ,. . pants therein; resulting -in the death of the plaintiff's intestate. We submit that this theory of the case is abundantly sup ported by .(ff"edible testimony, and that the court cannot dis turb the judgment of the trial court, unless it puts its deci sion upon the ground that· the plaintiff's intestate was an outlaw and her death, how~ver wrongfully caused, cannot give- rise to any cause of __ ac~ion. To so hold would be to amend, by judicial legislation, our wrongful death statute. We earnestly beg this court to read this petition care fully; then examine the record, and if we have quoted the testimony accurately, to grant a rehearing. If, upon are consideration of the case, the court should adhere to the present opinion, no harm can be done. If, on the other hand, a more- mature consideration will convince the court of its error in depriving the plaintiff of his judgment, fairly obtained in the trial court, the injustice can be corrected. We apologize for having written at such length. We would not have thus burdened an already overworked court, but our earnestness and sincerity were impelling. We con fidently believe that this petition will appeal to the court, and that once a rehearing is granted, the court will be ob liged to reverse its present opinion. W. M. UNDERWOOD, Administrator of Leatha Underwood, By Counsel. GEORGE E. AlLEN, Counsel.