Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1896-10-06
OUR HIGHEST COURT.
OPINIONS HANDED powS iEsTER-
DAY AT STANTON.
An Interesting Railway Case In
xo,vinw Damages Partnership
p.nt.-prt.on Associations OF Nir-
a,u,a VS.. Ashby--cour, Sadjourns.


following opinions were handed down IN
the Supreme Court to-day;
Chesapeake and Ohio Railway Company
rs. corbln H. Anderson. Opinion oy
Judee r.. II. Cardwtn From the Circuit
Court of Botctourt county. Reversed.
Ande. son by next friend brought suit
for injuries alleged to have been sustained
in consequence OF his being kicked OIL oil
a freight train by a brakeman. The facts
are as follows:
on The 5th OF August. 1891, one OF the
defendant company's fast freight trains
going west stopped at Eagle Rock TO take
water. About the time it started from
Eagle Rock Anderson. youth between
Is and II years Old got on box-ear TO
steal ride and according 10 his state
ment (and his Is all the testimony as 10
his being forced from the train) he was
standing between two box-cars or the
little platform that comes out from the
end Of the bottom Of the car, near where
the Drawbacks come together, that after
The train had run several hundred yards
"A man came along and SAID, what are
YOU doing there? aud as he anderson
turned his back to the man 10 get on, ne
instantly kicked him and Knocked him on
He placed the man whom he alleged KICK
ed him of on top of the car, right over
his head. He further said that the man
had nothing in his hands. 1t fclt IKE Il
kick" Il guess IL was a kick In addi-
ton TO the statement OF the brakeman
who Anderson said az the trial looked
mighty like the man who kicked him OIL
that he never saw Anderson on the tram
and by all the crew on the tram lnat nc
was seen BY none Of them till after the
train passed him lying on the ground II
was shown by uncontradicted testimony
that from the top Of the car where the
man stood 10 the plaintiffs shoulder,
where ne says he was kicked. II was 8
feet 3 inches: that IL is impossible for a
man TO stand on top Of car and KICK
down feet 3 inches, and that KICK
such as the plaintiff lays he received
would have cast him clear OF the cars
and not down on the track.
AT the trial the defendant asked for an
instruction, which was refused, TO the
effect that if one Of the brakemen on the
train. without authority from the con-
ductor (who alone by che rules OF the
company had authority 10 expel trespass-
ers). kicked the plaintiff from the tram
and thereby caused the injury complained
of. the act was outside the scope Of the
brakeman's duties and did not render the
defendant liable for the injury resulting
from the act The jury found verdict
for the plaintiff ard assessed his damages
at s. si5 and the defendant asked That
the verdict be set aside and n new trial
granted, which the court refused.
THE COURT HELD.
That the plaintiff was entitled
to recover I'm this case only upon proof
sufficient to show that he was in fact
elected from the train by one or more OF
the defendant company's servants, under
such conditions or in such manner as
TO cause the injuries for which ne sues,
and II proven thai he was so eJectet from
the train by a servant of the company,
IL must also be shown that the servant was
acting within the scope OF his authority
2 That while the expulsion Of tres
passers from the cars by a brakeman
is not a duty incident TO the position
he occupies. and that authority TO do so
does not arise by implication, II 1t was
the custom of brakemen TO eject tres
passers aud the railroad company had
knowledge Of the custom, or the Gus
tom be so general that the railroad COM
pany necessarily knew OF II, authority
to do so might be inferred and the COM
pany be held liable for damage resulting
from an improper and unlawful exercise
Of the authority by the brakeman.
3. That the evidence Of the plaintiff TO
show that the custom on the defendants
road was at the time of this accident
for the brakemen 10 eXpel trespassers
from the cars without reporting them TO
their conductor, and that the company
had knowledge Of the custom, is made
Quate.
T. That the expulsion OF trespassor
by a brakeman from freight train in
the sight OF the conductor and with bis
approval and assent at the time, are 70
be construed as the acts of the conductor
and must not be considered as a violation
of the rules and regulations of the COM
pany that require brakemen 20 report
such trespassers to their conductor
s. That the act attributed 10 Brake
man Callaghan In this case Is shown by
the evidence 10 be a physical impossi-
biity even were the train al rest and the
difficulty and danger attending any effort
10 accomplish such a feat are yet more
obvious when the fact is recalled that the
train was I'm motion at the time.
6. That though the case Is under the
law to be considered as upon a demurrer
TO evidence, that rule while II may, and
often does, compel the court 10 accept
as true facts capable Of proof by testi-
mony though the prepOnderance OF testi-
mony be ever so great against IL, cannot
compel the court TO accept as true what
IN the nature Of things could not have
occurred In the manner and under the
circumstances narrated. and may be said,
therefore, 10 be not susceptible of proof.
T. That subiecting the evidence in this
case 10 the most rigid application of the
rules governing demurrers TO evidence,
Il is plain that the defendant company
was guilty OF no negligence committed
directly or remotely with the injuries OF
the plaintiff, which We're so far as the re-
cord shows. due solely 10 his own reckless
intrusion upon the defendant companys
cars as a trespassers
PARTNERSHIP ASSETS.
Guggenheimer & Co. VS. John S. Mar
tin q co. Opinion by Judge John A.
buchanan. From the Circuit Court of
Albemarle county. Affirmed
Held: That in order for a creditor,
who has lien upon one fund. to be en-
titled TO subrogation to the right of a
creditor who has lien upon that and
another fund, IL f. a necessary condition,
among other things. that both funds upon
which the prior creditors claim is Sc
cured shah be the property Of the same
debtor; and that this condition does not
exist where the assets Of a partnership
constitute one Of the funds and the i'm
dividuai property of member Of the
partnership constitutes the other fund,
unless that partner has in equity become
entitled 10 the partnership assets and
become primarily liable for the partner
ship debts.
Prison Association OF Virginia VS.. Will
liam Ashby. Opinion by Judge John A.
buchanan. From the Circuit Court OF
Washington county. Reversed.
An act entitled "An act In relation 10