The times. [volume] (Richmond, Va.) 1890-1903, 1892-03-25
IMPORTANT DECISIONS
IyrnEsUpREME coURr oFArFEALs'
Tn. Norfolk and Western VIII Not have q"
Pay for the Death OF Engineer
and Gained Suit Against the Posf" '''

Among the opinions delivered IN the 0u-
preme Court Of Appeals yesterday wac ,- a.
the case Of the Norfolk and Western ha'ifo"'
Companv against Iindsmood's administrH.V''
The opinion was delivered by Judge ""1'
roy. ,ho
Il was A writ Of error TO judgment u '"0
c;rc,;, Court of Giles county rendered on
May n. 1880, in an action at law the'o'" -
inc. wherein d. c. Lindamoo cd 5 admin
was the plaintif and the raiir'au 0"n'-
nonv defendant The suit was Or9usnyy
~ rscover sin 900 damages tor the nbo~9 ~
coraiess and negligent killing Oh - y.
Iindamood on February ~ 1907 IT.
train of the defendent company. IA orr
II 1889 a Jury rendered Yerl'ct ~ a'' - so0
cnit court in favor of the plaintiH LOT ,~''oggtt
onJ ;,1,nert WAS entered accordingly ~
o',,a.rs 1ror, the record that l.. I. Lluy"-
r,nod WAC the engineer on one or the Nv
PENDANTS ENGINES that were drawing -"
of empty freight cars moving "es."N'' r;iss
tween RipplewOod and Eear4souIs - 80,
co,,rtv On chat day. Attic same time another
train loaded with coal was moving e@s.M ~ Ia
on tLa same track Both trains were uuoet
tsleorauhic orders directing that the Tram
CONC vest should meet and pass the o'neI
| train at Shumate "a siding ABOUT TWO IN. .t
west of Pearisburg. The east-bounu .in, ,l.
| did not wait at Shumate unth 'he tiain go" 80
west had reached there and coiHs,on .i Hv".
! Pearisburg nj A. 81. was tie result A''''H-
Engineer iindamood. sn.o
Ihe record also shows thatatthe tlmeol tle
! collision IindamoOd was running his tran III
! violation Of the rules OF the COMPANY ~
more than thirty-ive miles an hou.' W." w.
| the maximum rate allowed was el-n'I
/ miles. and that he had the window or ms c"o
| shut and was lying upon his SIDE lhsle5 u.
| heing on the lookout, and That ne ebu AoI
! have his engine under control As rsiullou %
the regulations, upon the approach u " 9'"-
ton. ...,,,,-
There was no contention that the COMPANY
WAS guilty Of any negligence, III me couu4'lon
If he roaa in the CONFUSION of its orders Or
in the omission OF any incumbent uuf %
| oblioation to its employees nor dld the Neciala-
ton allege negligence OF want OF care, e'.-oi
in selecting or retaining IN It's employ iil 0ol-i-
petent or unskiiiful servants. but II only s9.S
firth and charges that the killing OF ihh"e-
mond was caused by the negligence, deiault
and unlawful act of the company Servants
on the other train and for which IL chaiseu
that the company was liable IN damages.
/ There WAS a demurrer 10 the deciaratoh'
which the Court oyerrued, and theie N"s
motion to set aside the verdict ana grant a
new trial upon the ground that the verdict
was contrary to the law and the eFioehce'
which motion the Court Overruled.
The facts OF the case show that Lndam no
| was q fellOw-scrfant ~ the employees on INC
other train and that his death was caused ny
tie misunderstanding. neglect or disoD eul-
ence OF his fellow servant IN the otner triih'
| and that Iindamood WAS guilty or cOntTlDu-
tory negligence IN bringing about ms own
death lie tOOE uDOn himself ~ MS
! contract of service the ordinary IlsA
incident 10 that service, and the
negligent act or fault OF his iellOW-serFan'S
was not imputaOie 10 the common master %
| employer. but was one of the risks incident 10
the service and assumed by his contract. ne
! Court Is of opinion that the collision occurred
| without tine fault or negligence OF the com
| pauy. and that the verdict OF the jury ~
against the law and evidence IN the case. and
the Judgment of the Circuit Court Of tiles
county complained Of is wholly erroneous.
both upon the facts and the law, and the
same is reversed and annulled.
The Postal Company.
Another important opinion was the one de-
| liyerel in the case of the Postal Telegraph
! Cable Company against the Norfolk and
! Western Railroad Company Judge Lacy
| writing the opinion. The suit was brought
! by the plaintiffs in the County Court of Prince
! George county 20 condemn the land OF the
railroad company for the use OF tue telegraph
company in erecting It's line upon the line OK
the railroad company.
When the case went back for further pro-
/ CeeNlUnS. u
! commissioners IN the condemnation pro-
ceedings 20 ascertain the damages 10 be paid
10y the plaintiH for the right OF way desired.
| This was done and the commissioners tlXed
the damages at 300, and the Court approved
the report of the commissioners.
The railroad company obtained writ or
error and the circuit court OF that county
subsequently reversed the Judgment OF the
/ county court and dismissed the condemnation
proceedings instituted by the telegraph COM
pany. whereupOn the telegraph company ap-
pied TO the supreme court of appeals for IS
writ of error. which 1t obtained. The error
assigned by the plaintiff in error was that the
circuit court erred in reversing the order or
the county court IN the premises, It beng
plainly right. proper and qualified by the law,
which had been strictly followed IN all the
| proceedings in the county court
The opinion of the supreme court or APP
peals sets forth that the county court WINS
wrong IN It's construction of the statute anu
that the circuit court was right IN reversing
its action. There was an earnest protest on
the part OF the railroad. that having one line
atrendv bv contract another could not be
run on its land without obstructing It's line IN
ordinary use. And also that under the
law the railroad was an entirety
and there was no adequate machinery
provided for It's condemnation. Assessment
| proceedings Of tracts of lands lying in differ
ent counties shall be made In the county
q
was not true as 10 Prince George county IN
this case. The Court finds that the telegraph
company is not authorized TO condemn the
railroad land or right of way in any court,
and the judgment Of the circuit court ap-
pears to be plainly right and must be affirmed.
Other Cases.
Tho other opinions were rs follows:
Postal Telegraph Cable Company against
| Norfolk and Western Railroad Company.
FROM the Chaucery Court of the city of Rich
mond. Reversed, Judge Lacy delivering
| opinion
Norfolk and Western Railroad Company
against Postal Telegraph Gable Company.
Two cases. From the Chancefy Court OF the
city Of Richmond. Affirmed. Judge Lacy de-
liverng opinion.
Prices administrator against Davis. From
the Circuit Court of Greene county. Al
firmed. Judge Lewis deliying the opinion.
farr against Baldwin. From the Circuit
Court of Fairfax county Reversed, Judge
A. ALI.