dissenting.
I regret that I cannot agree with the majority opinion in this case. I think there is ample evidence in the record upon which the jury could properly have based a conclusion that Sandridge, the engineer, if he had used ordinary care in keeping a lookout, either would have discovered the *743decedent, Marshall, in a position of peril in time to have avoided the accident, or would have seen the stop signal given him by the yard conductor.
The following testimony of the yard conductor, Mays, who was in charge of the movement of the engine, if believed, clearly establishes the fact that after Marshall and Mrs. Black had already stepped down from the door of the warehouse, and while they were standing in the middle of the track, the engine began its movement towards them.
“Q. Where were you, Mr. Mays, as that engine went down to get that car?
“A. I was at that west end of that track.
“Q. Were you looking at the engine?
“A. I wasn’t paying any attention to it.
“Q. Did you hear the engine put in reverse or whatever you call it when it coupled up the car?
“A. Yes, sir.
“Q. Did you look around at that time?
“A. Yes, sir.
“Q. When you looked around did you see anybody either getting out or in the door of the Thomas Warehouse?
“A. There were two people standing in the track.
“The Court: Standing in the track?
“A. Yes, sir.
“By Mr. Battle:
“Q. When the engine reversed?
“A. Yes, sir.
“Q. When the engine coupled on to the car down at the end of the track and you heard it reverse and looked around and saw those people standing in the track what did you do?
“A. As the engine started forward, I hollered for them to get back or to watch. I don’t recall what I said, undoubtedly they didn’t hear me and so then I started running toward the yard engine. (Italics supplied).
******
*744“Q. When you started signalling, could you tell us where the front of the engine was with reference to that wire fence down there?
“A. Well when I started signalling he had just started out and that would put him pretty close along the wire fence. (Italics supplied).
“Q. You say he was just starting out when you started signalling?
“A. Yes, sir. When he started I hollered for them to get back it was somewhere about the wire fence, the end of it.”
The “signalling” referred to was shutoff or stop signals Mays was giving the engineer.
When the engine began its movement, the front of it was 139 feet east of the warehouse door.
The engineer, Sandridge, testified that when sitting in his cab, in the ordinary position, he could see around the front of the engine an object sixty or seventy feet ahead. If the jury believed this testimony, as we must assume it did, then if the engineer had been looking ahead at the time he started his engine he would have observed Marshall and Mrs. Black standing on the track with their attention directed to someone inside the building. If he had been looking after the engine started, he could likewise have seen them while he was traveling the first sixty-nine or seventy-nine feet in their direction. As the engine started up it was obviously traveling very slowly and had gained speed to the extent of about five miles an hour at the time Marshall was struck. The jury, therefore, would have been justified in concluding that the engineer, by the exercise of ordinary care, should have discovered Marshall in his position of peril, obviously ignorant of the oncoming engine, in ample time to have stopped it before reaching him.
While there was some conflict as to the ability of the engineer to see an object sixty or seventy feet in front of the engine, the jury took a view of the same engine and had every opportunity to test' the accuracy of the testimony.
*745The fact that Marshall was oblivious of his peril was clear to Mays, the yard conductor, and he began, immediately after the engine started, to run towards the engine, giving stop-signal orders to the engineer as he ran. It appears therefore that, even after the engine had progressed to a point where the engineer could no longer see Marshall and Mrs. Black, he could have seen the stop-signal orders which were being given to him by Conductor Mays. This is admitted by the engineer who testified as follows:
“Q. If you had been in a position for you to see him (referring to Mays) and he had given a signal, would there be any reason why you couldn’t have seen him?
“A. None whatsoever. I was sitting facing forward like I am now at the time, there was nothing to obstruct me from seeing anybody over in the track I was in or the opposite track.
“Q. You were sitting looking forward?
“A. Yes, sir.
“Q. Did you have your head out the window?
“A. No, I was looking through the front clear vision glass.”
The inference from this testimony of the engineer apparently is that Mays did not give any such signal. Mays’ testimony, however, is corroborated by the brakeman, William Carter, who testified that from his position on the rear of the car which was attached to the engine he saw Mays giving the signals and he himself immediately “started doing the same thing,” in case the engineer should look his way. He says he saw these signals after the engine had traveled about twenty-five or thirty feet. Carter states that he was hanging from the rear of the car on the side step and that, if the engineer had been looking in the same direction that he was, there was nothing to prevent him from seeing Conductor Mays giving the signals.
Carter’s statement that the engineer could have seen Conductor Mays if he had been looking was corroborated by the testimony of Mays himself, which was as follows:
*746“Q. How far were you from this side track, from the western end of the track, Mr. Mays? What I am getting at is this, if the engineer had been looking up the track, would you have been in his line of vision?
“A. Yes, if he had been looking toward the outlet of that track, I-believe he would have seen me. Whether he was looking that way or not I don’t know.”
The majority opinion quotes the testimony of Desper and Mrs. Black, companions of the deceased, which would indicate that the accident occurred in a much shorter time after the decedent stepped from the door than is indicated by the testimony of Mays and Carter. I think, however, it was a question for the jury to determine which version of the accident it would accept. Desper and Mrs. Black, of course, had passed through a highly exciting and harassing experience and the jury might have regarded their memory of the time which elapsed after the decedent stepped from the door until he was struck by the engine as not dependable. As said in Moore on Facts, Vol. 2, section 867:
“There is nothing about which honest men swear so vaguely and contradictorily as the times which mark the progress of an exciting incident. * * * .”
Arid in section 863 to the same effect:
“ * * * Excitement of the witness at the time of which he speaks will make his estimate all the more unreliable. ‘When it comes down to the point of estimating duration of time by one or two minutes or the fraction of a minute, under exciting circumstances, the testimony of the average witness as to accuracy is of little value.’ ”
The correctness of this appraisal of the accuracy of the memory of witnesses under such circumstances is borne out by the testimony of Mrs. Peterson and Desper with reference to what happened immediately preceding the accident. Mrs. Peterson’s statement on the subject is as follows:
“We followed Mr. Marshall to the freight door and when we got there he jumped out and helped Mrs. Black out and *747then he turned around to help me out. About that time Mr. Desper was walking up and said Grace go ahead and jump and I said no Bob you come here and help me out.
“Q. How far was Mr. Desper from you when you said that?
“A. I would say 8 or 10 feet.
“Q. That was after Mr. Marshall had jumped?
“A. Mr. Marshall and Mrs. Black were both on the ground.
“Q. Did he come up to help you out?
“A. Yes, sir, Mr. Desper came up and he was ready to help me to the ground and at that time I heard the engine and Mr. Marshall and Mrs. Black scream and about that time Mr. Desper threw me back in the building, by that time the engine had hit them both and knocked Mrs. Black around and when it did that Mr. Desper caught her and pulled her in the building.”
With respect to this same incident, Desper’s testimony was quite different:
“Q. Do you remember hearing Mrs. Peterson ask you to help her Bob, or something of the sort?
“A. Yes Mrs. Peterson was behind me a very short disance and the rest of them was on the ground and I was just about on the edge to go out too to help her down,, and Marshall had turned around to help her down. When I saw this engine I knocked Mrs. Peterson back in the door and then I caught Mrs. Black when the engine went on by and pulled her in the door.”
Thus, according to the memory of Mrs. Peterson, Desper was approaching them and was a distance of 8 or 10 feet behind her, whereas, according to Desper, he was a short distance in front of Mrs. Peterson.
At any rate, the jury may have believed that they were indulging in a jocular discussion as to which of the two men was to have the privilege of helping Mrs. Peterson to the ground, and that a sufficient amount of time elapsed, after Marshall and Mrs. Black were standing in the track *748and while Desper was coming up from the rear, to reconcile any apparent conflict as to the time element in the testimony of Conductor Mays and that of Mrs. Peterson and Desper.
But, regardless of whether or not there was an irreconcilable conflict in the testimony of these witnesses, it was within the province of the jury to resolve it and to rest its verdict solely upon the testimony of Conductor Mays and the brakeman, Carter.
As said by Mr. Justice Gregory in Virginia Elec., etc., Co. v. Blunt (1932), 158 Va. 421, 163 S. E. 329:
“Unless the judgment of the trial court is plainly wrong or without evidence to support it, this court has no power to set it aside. (Code, section 6363). After a verdict has been found in favor of a plaintiff we must accept as true all of the facts favorable to the plaintiff which the evidence tends to establish. For the purpose of the first and second assignments, this court will view the case practically as on a demurrer to the evidence by the plaintiff in error.”
The rule is elementary that all conflicts in the testimony and inferences therefrom must be resolved in favor of the party who has obtained a verdict in the trial court. In Selfe v. Fuller (1942), 179 Va. 30, 18 S. E. (2d) 254, the statement of the rule contained in one of our earlier decisions was quoted with approval in the opinion of Mr. Chief Justice Campbell:
“It should be unnecessary to say what we have so frequently said before, that when a litigant comes before tiffs court with the favor of a verdict of the jury approved by the trial court he occupies the strongest position known to the law, and that, in such cases, the facts should be stated and accepted in the light most favorable to him.”
The evidence shows that the track on which the accident occurred was a sidetrack intended primarily to provide unloading facilities from freight cars to the warehouses adjoining it. It was a dead-end sidetrack extending only a short distance beyond these warehouses. Not being used *749for current railroad traffic, the jury may have inferred that it was so highly improbable that a train would be traveling on this track that the enginemen should have anticipated that persons walking or standing thereon would not be diligent to observe a careful lookout for a possible approaching train. It is a matter of common knowledge that it is customary for property owners to bear the cost of installing sidetrack facilities. There is no evidence to show that the decedent did not look for an approaching, train before or immediately after he jumped from the warehouse door. If he did look, what he saw, according to the testimony of Conductor Mays, was an engine standing still.
Moreover, not one of the three companions of the decedent heard any engine bell -ringing, and the jury would have been justified in concluding, as a matter of fact, that it did not ring. Under these circumstances, I believe it cannot be said, as a matter of law, that there was any negligence on the part of the decedent even if he looked and saw the standing engine.
However, even if such negligence could be imputed to him, there is ample evidence to support a finding of the jury that the negligence of the engineer in failing to keep a lookout ahead was the sole proximate cause of the accident. It is well-established by the numerous decisions of this court that, if the engineer saw or by the exercise of ordinary care could have seen the decedent’s situation of peril in time to avoid the accident, he will be deemed to have had the last clear chance to avoid the accident. In such a case, the negligence of the decedent, if any, is to be regarded in law as a remote and not a proximate cause. In Yellow Cab Corp. v. Henderson (1941), 178 Va. 207, 215, 16 S. E. (2d) 389, in an opinion delivered by Mr. Justice Spratley, the following is said:
“The doctrine, we think, has nowhere been better stated than by Mr. Justice Holt, in the very recent case of Joynes v. Coard, 175 Va. 571, 9 S. E. (2d) 454, 455:
“ ‘Whenever one sees another in a place of peril from *750which it appears that he cannot extricate himself or where it appears that he is unconscious of his danger, or whenever by the exercise of ordinary care the defendant should have been cognizant of the situation and has a clear chance to avoid an accident with safety to himself, he must take that chance. In short, he is charged with what he saw and with what he should have seen. The antecedent negligence of a plaintiff does not of itself preclude his recovery. Starkly stated, the reason for the rule is this: One can not kill another merely because he is negligent.’ ” (Italics supplied).
That it was the duty of the engineer in this case to keep such a lookout as would enable him to see the decedent, Marshall, so long as he was within his range of vision, and thereafter to observe the conductor, Mays, giving his stop-signal orders, is established, I think, by our recent decision in Washington, etc., Railroad v. Taylor, 188 Va. 458, 50 S. E. (2d) 415. That case involved the liability of the railroad company for the death of a trespasser on its tracks, who had wandered there in an intoxicated condition and fallen asleep. Two young boys, who knew of this condition, sought to warn the engineer of the approaching train by waving their arms. In referring to the testimony of the engineer and other witnesses as to this incident, the opinion of Mr. Justice Gregory has this to say:
“He” (the engineer) “says that he saw Boldin waving his arms above his head. Boldin testified that he was between the rails flagging the train. As we have already stated, the jury could have accepted that statement. It constituted a superadded fact. From the testimony of both Boldin and Thompson the jury could have found that the engineer was not keeping a proper lookout ahead at the time the engine passed the boys. No whistle was sounded or bell rung to warn Boldin to get off the track though the train was approaching closely to him. The jury might have concluded that the engineer even failed to see Boldin from the fact that he failed to sound his whistle, and that he also failed to see Taylor.”
*751In the Taylor Case the accident occurred at a point where pedestrians frequently made use of the railroad track. And so in this case there is ample evidence to show a similar pedestrian use of the area in the vicinity of the place where the accident occurred.
I will summarize my views as follows. I think the evidence is sufficient to support the following findings by the jury:
1. That just immediately prior to the time the engine started in motion, the decedent and Mrs. Black were standing opposite the warehouse door with their attention obviously fixed on what was taking place inside of the warehouse.
2. That the engineer, if he had kept a proper lookout, would have seen them in their situation of peril at the time his movement began and thereafter while his engine was traveling the first 79 feet, or thereabouts, in their direction.
3. That bell of the engine was not ringing.
4. That if the engineer had observed the decedent in an attitude showing that he was oblivious to the danger from the moving engine, and that his attention was absorbed by occurrences within the warehouse, it would have been his duty to stop the engine immediately, or to adopt other effective means to avoid killing the decedent.
5. That the defendant, through its agent the yard conductor who was in charge of the movement of the train, discovered at the time the engine began its movement, that the decedent was in a situation of peril and was in danger of injury or death unless the movement of the engine was halted, and gave signal orders to the engineer to halt such movement.
6. That if the engineer had kept such a lookout as it was his duty to do, he would have seen the conductor, Mays, as he was running towards him giving the stop signal orders.
7. That it was the duty of the engineer to obey such *752orders of the conductor, if he had seen them, and immediately to stop the movement of his engine.
8. That the defendant, through its engineer, had the last clear chance to save the decedent by keeping a lookout through its servant, the engineer, and by his obeying the orders of the conductor.
9. That the engineer neither looked ahead before, or at the time, the genine started, nor kept any lookout whatever while the engine was in motion.
10. That, under the circumstances of this case, such failure of duty on the part of the engineer was the sole proximate cause of the decedent’s death, and that the decedent’s negligence, if any, was a remote cause.
After hearing the testimony of the witnesses and viewing with the jury the scene of the accident and the engine involved therein, the learned judge of the trial court entered judgment upon the verdict of the jury in favor of the plaintiff. I do not think we should disturb that judgment.
Gregory, J., concurs in this dissent.