The times. [volume] (Richmond, Va.) 1890-1903, 1895-12-13
DIGEST or OTHER oPI.IoNs.
Important Discussion Involving ''"'"
tutIonal Question Other ta-e-.

The following opinions were handeu
down in the Supreme Court YESTERDAY -,
Seaboard and Roanoke .ailIysi.n ratnr
pany against Joyner's AimlnlStfa'pl
From tho Circuit Court OF Southanlplonl
Alarmed Opinion by Judge keith, presi-
dent. .t..,,. ~,
f,.irfr on tha side OF tho roadway OF me
company. his arm resting on the ran
and his head IN the h0lo" or ny "l"i,
me was about 80 or OVb yards from
station. the day was clear and bright.
the track straight, The view from W,
station to J. wholly Unobsiructeu' anu
he plainiv and easily visible. Nhtn the
train moved out from the siauon' y
neighbor gave the alarm that > was III
the track and would be run over anu
thercupon two colOred men ran aoNh
the track one upon each side OF Il, one
of them waving his hat az every HVI
and making every possible eAtfboh 10
siop the train. one ran along the Track
quite eighty yards with that deafef
but all in vain The engineer said he
Thought these ssus were 'thfistmas
tricks" and dit not apply the brakes 81
reverse his engine until too rate. - was
struck and died In a few hours.
Held: Though the plainun were sdiity
OF c0ntributary negligence. when may
have contributed 10 the accident YET II
defendant could IN the result after II
discovered the peril. by the exercise OF
proper care and due diligence nave
avoided the mischief. II Will not DC eX-
cused by the plaintiffs negligence, thoueh
such negligence amounted 70. uespass
upon its property by plaintiff.
While the extent OF the duty or the
company 20 look out for trespassers, and
the degree OF care TO be exercised III
ascertainng his peril, are subject TO
much controversy. IL Is settled that when
his danger j. discovered the duty arises
10 avoid injury TO him In every way
consistent with the higher duty u owes
it's passengers. 81 Graft, ST.. 80 Graft,
COZ: So Va. 553. 81 Va. page 81.
p IL IS no longer an open question III
Virginia that except al crossings ana
places where the public have Dy law or
custom or the acQuiescence or inc COM
pauy. right 10 the use or fallroah
property. that the company has the eN-
elusive right 10 uninterrupted enjoyment
OF its rOadbed. track. and other property.
They owe no special duty 10 mere Tres
passers; but they cannot with IMMUNITY
infict upOn them reckless or Nantou
injury. When the danger OF the trcspass-
en- ~ discovered. II becomes the duty or
the company 10 avoid iniuring him, with
ont regard TO the TACT OF his contrlhutory
NEGLIGENCE and TO DO All n can, con-
sistentlv with its higher duties 20 IT'S
passengers. &c. to save the trcspasser
from the consequence OF his own I'M
proper act. sherman and Redheld on
Negligence fourth ed, sec. ~,
Robertson against Hardy and Others.
From the Circuit Court Of Dinwiddie. Al
nrmed. opinion by Judge ke.y
Construction Of VIII. Az the per
sonal property remaining AT my wite's
death Shall bo sold and equally divided
among certain Of his children.
Held The words remaining az my
wlfes death imply power in me VIE
TO Use. consume, and dispose Of the per-
sOnal property; ana such power implies
absolute dominion, which imports ahso-
Lutte ownership. Hence a limitation over
10 another is void. because inconsistent
with and renugn ant 10 the estate given The
first taker. though the VIII SHOWS J
was the iutention OF the tes'atOr that
what may remain Of the bequest a the
death of the first taken should go 10
another Parish vs. Way man, Va. Law
Register. Vol J., 2lt
CONSTITUTIONAL QUESTION.
Cahoon, Treasurer. &c. against Iron
Gate Land Company From the Circuit
COu't OF AN-ghany county Reversed.
Opinion by Judge CardweD.
Involving a constitutional question.
TIE preamble OF the Act OF iLcOrpOid-
ton OF the town OF iron Gate sets out
in Allegheny. bur that a small portion
u .s IN BOtefOuIt. ana it is desired TO
incorporate the tOWn ana have the wholu
Of 10 located IN one county The fourth
section OF the act declares that the whole
al the town shall be deemed 10 be ID
Allegheny. and cOnfers Jurisdiction civil
and criminal on the proper officers or
Allegheny county over the entire limits
The title OF the act. however. IS sim
ply An act 10 INCORPORATE the town OF
Iron Gate, Virginia" without any refer
ence 40 changing the boundary line Of
two counties.
Article V., section H.. Of the Constitu-
ton reads. NO law shall embrace more
than one object, which shat be expressed
in itz title
be considered germane 10 the one general
object expressed IN the title. and the
fourth section OF it, read in connection
with the preamble, j. irroconcilable with
the object expressed I'm the title Not
being germanc. or connected directly or
indirectly with the general object eX-
pressed IN the tile. u is, therefore, Ia
conflict with the section OF the COnstitu-
ton herein quoted.
, Inasmuch as after striking out the
fourth section Of the act, there VIII be
yet left a complete ACT, sensible. calable
Of being executed. and wholly indie
pendent Of that which Is rejected, IL
must b. sustained as constitutional as 10
all matters not contained IN said fourth
section, which Is held to be unconstitu-
tional and void. and the land within the
county OF Botetourt Is subject 20 taxation
only in that county.
HUSBAND AND WIFE.
Norfolk and Western Railroad Com
pany against Dougherty. From tho Cor
poration Court OF Norfolk Reversed.
opinion BY Judge Harrison.
The case goes OFT on an error IN plead
ing. the Court intimating, however. that
the nlaintiR In error was not entitled
TO a verdict on the merits
Action brought by husband and wife
for injury 10 wife. The wife was doing
business as hotel keeper on her own
account and the horse and buggy she
was driving. and which were destroyed
by the company al the same time she
sustained bodily injuries. was her prop
erty.
Held: Under the married womans law
Code en- lO3) damages FOR wrong
sustained by married woman are her
separate estate and absolute property.
and in no way subject 10 her husband
use o. control
An action fer tort must In general be
brought in the name OF the person
xgronced. ana an action for an injury 10
lie absolute rights OF a person can only
be brought in the name OF the party
actually injured, or (under the statute)
Il he die by hts personal representative.
The husband. having no legal interest
in the suit and the damages involved
being the separate estate OF the wife.
who has the same power 10 sue or be
sued % any other individual. the hus-
band vas not a proper party TO the suit
and the nj slolnCer f. = fatal defect
.. Though the verdict and judgment
be IN favor OF the wife cnly.. the arit
having vcen brought prior 70 the act OF
February, 1891. In reference 10 mis-
jonders, they are not cured by that act