Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1896-04-10
CAN'T GET DAMAGES.
Court Of Appeals Decides The Famous
Cornell Case In Favor Of Railroad.
WAS SHOT IN A PULLMAN BERTH,
would Require More Than Human
Care TO Prevent Such n Tragedy
JafIers Must Provide Fuci--Opin-
ions Rendered Yesterday.


against the Chesapeake and Ohio Rail-
way Company and the Pullman Palace
Car Company. which decides for the first
time. so far as this tribunal is concerned.
the question OF the liability of a railroad
company for damages to passenger sus-
tanning injuries at the hands Of a fellow
passenger or an intruder. The point is
ably and Interestingly discussed through
out by Judge James Keith, who pre-
pared the opinion.
Mr.. +. D. Connell citizen OF Ohio on
the night OF August l. 1891, was shot
while asleep In a berth of Pull
man palace-car, attached TO train OF the
Chesapeake and Ohio Railway Company
between the points OF Basic City and
waynesboro' The wounded man was re-
moved TO Charlottesville. where he died
few days later. The executors
OF Mr.. Connell brought action in
the Circuit Court OF the city Of
Richmond against the Chesapeake
and Ohio and the Pullman Palace-Car
Company for $4,000, complaining that 1t
was the duty Of the defendant companies
to use due and proper care that the plain
tin should be safely and securely carried
on said railway. and protected from in
jury while on the train. and the charge
OF negligence upon the part of thu de-
PENDANTS is made against the defendants
In not keeping proper guard over and CIV
ing the necessary attention TO their pas
sengers TO protect them.
THE DEMURRER SUSTAINED.
The Circuit Court sustained the de-
murrer. and permitted them 10 amend
their declaration, which was promptly
done, and the defendant again demurred.
and the Court sustained this demurrer 4
writ Of error was then awarded 10 the
Court Of Appeals In the opinion Judge
keith says: The demurrer To the amend
ed declaration presents a question OF
novelty and interest. which. IL is be-
heved. has seldom arisen, and which GER
tainly has never been passed upon by this
court Railroads engaged as carriers of
passengers. while not insurers az inst all
injuries except by the act OF God or OF
public enemies, as are the carriers OF
goods, are yet bound TO carry safely those
whom they take into their coaches in so
far as human care and foresight can pro-
vide: that is to say. are bound to use the
utmost care and diligence of very cautious
the slightest negligence which human
care, skill, and foresight could have
fcreseen and guarded against. pas
scnser who sustains an injury growing
out of the negligence of the carriers SER
wants or agents. or because of any defect
In machinery, coaches, roadway, or other
appliances connected with its transporta-
ton of passengers. is presumed. until the
contrary is shown, to have been injured
by the negligence Of the carrier: and upon
proof OF the injury he has a prima facie
case which. in the absence of proof to
the contrary. entities him to recover
damages for the wrong.
THE COMPANY NOT NEGLIGENT.
''The injury here. however, is not the
result Of any defect in the instrumental
ties used by the defendants The neglt-
gence averred is in the failure to OBJ
serve such care and to take such pre-
cautions as would effectually protect a
passenger asleep in the night time upon
Pullman coach. constituting a part of
the train Of the Chesapeake and Ohio
Railway Company, from an assault
made upon him by some unknown per-
son. passenger or intruder, as the de-
claration alleges, who was permitted to
enter the Pullman-oar with intent to COM
nit murder or robbery, and who did in
flict upon the plaintiffs testator Injuries
from which he died. 1t Is not averred
that the defendants or their employees
knew that any danger impended over the
testator of the plaintiffs I'm error, or that
there was any circumstance to arouse
their suspicion, however watchful and
alert they may have been"
JUDGMENT AFFIRMED.
Judge Keith here refers to a number
OF cases cited by the plaintiffs. and says
that they deal only with the liability of
companies for property lost or stolen by
failure to keep continual watch upon the
interior OF their cars. He did not think
that this proposition applied to the case
before the court. He says that where
carriers are liable the negligence com
planned Of must stand as the proximate
cause Of the injury sustained-that is. II
must be the direct and efficient cause.
The opinion goes on to say: can IL be
said that In leaving a door ajar, In per-
hitting stranger or passenger to enter,
the defendants were guilty OF negligence.
when TO hold them negligent would be
TO say that they should have expected
the tragedy which gave rise 10 this &C
tlon? TO do so would be TO require Of
them more than human foresight as to
the minds and motives of men, and
make them, indeed, insurers OF the
safety of passengers, while under their
care against all dangers, however re-
"
sion CT commission" The judgment of
the lower court In sustaining the de-
murrer of the defendant companies is
affirmed.
MUST FURNISH HEAT.
The opinion In the case Of Price. Au-
ditor, against Smith, from the city OF
Alexandria, was read by Judge Harrison.
The first question determined In this con-
troversy was the right Of this court TO
take jurisdiction by writ OF error i'm a
mandamus proceeding where the amount
Involved is less than $500 The court
holds that II is vested with original iurls-
dietion to award The writ OF mandamus
In all cases without regard 10 the amount
involved. and il would be remarkable if
the Legislature intended 10 prohibit. re-
view, or not allow IL ia cases of man
damus, where the court below I'm the eX-
ercise OF its Jurisdiction has erred. In
the case at bar the Corporation Court OF
the city Of Alexandria entered an order
allowing an account in favor Of the Ser
gcant OF the city, who is ex-ofIicio its
jailer, for sis296 for fuel furnished the
city jail, which the Auditor and the
City Council refused 10 pay. The effect
of the decision is that the jailer or Ser
geant MIST keep the jail properly
warmed out OF the fees allowed him by
section 25S2 OF the Code OF Virginia, which
allows Is cents for receiving a prisoner
40 cents a day for keeping and supporting
him. and when there Is more than three
and less than ten prisoners 30 cents
day. and Is cents day each when there
are more than ten prisoners IN Jail The
Court OF Appeals says that the Corpora
ton Court erred In awarding the manda-
mus prayed for. and that it's judgment
he acfIa