Opinion
No. 6124.
Argued October 4, 1950.
Decided October 18, 1950.
Joseph M. Sanders, Bluefield, W. Va., (W.W. Coxe, Roanoke, Va., on brief), for appellant.
Arthur Ritz Kingdon, Mullens, W. Va. (Kingdon Kingdon, Mullens, W. Va., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal from a judgment against a railroad for the killing of an infant by one of its trains at or near a crossing. It is strenuously contended that there was not sufficient evidence to take the case to the jury; but we think that it is sufficient under the rule that, for this purpose, it must be considered in the light most favorable to the plaintiff. As the case is to be tried again, it is not desirable to discuss the evidence in detail.
We think, however, that there was error in permitting the jury to consider the case under the theory that the infant may have been killed, not as a result of being struck by the train, but as the result of the train's not being stopped thereafter as promptly as possible. The testimony is that the child was struck by the train and thrown forward and that the train passed over it. There is no substantial evidence from which the conclusion can legitimately be drawn that any subsequent slowing up or stopping of the train could have avoided the fatal injury and the jury should not have been invited to enter into any such field of speculation. Defendant's exception to the charge relating to this aspect of the case must accordingly be sustained.
The judgment appealed from will be reversed and the case remanded for a new trial.
Reversed.
Circuit Judge SOPER concurs in the view that there was no substantial evidence that the fatal injury was caused by any failure on the part of the Railway Company after the child was struck by the train; but he is of the further opinion that there was no substantial evidence to justify the submission of the case to the jury.