The times. [volume] (Richmond, Va.) 1890-1903, 1897-12-03
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nation OF a juror on his voir dire as wnen
a question is asked a witness Whleh ~ -
NOT permitted TO answer; In order 20 n"'.
. courts action reviewed the record mus
show what was expected TO be proven Wy
reason being in both cases thal J"u7
nent will not be reversed because e''
derco has been rejected unless us III"
teriality be made to appear. Oh'pn W,
tr,I no Insurance Company vs.. follaiu
o. Southeastern Reports. Al, AZ. w. ahu
cases cited .,...s
. Whore n witness has been examined
croes-eyamined and re-eNamlned' uhieS9
now matter be brought out on the re-
examination. tSc examination ought 0rdl-
narilv 10 be considered closed. IL ne"
matter be brought out the opposite party
ought 10 be permitted TO interrosate mo
witness as to II. Where party - eNer-
clsing an absolute right tho court must
know what his question IS before II can
refuse 10 permit him 10 ask it, II eXercis-
ing a. mere privilege which the court mas
the right 10 refuse or 10 withdraw, now
ever much its refusal may offend against
judicial propriety IL is not reversible err
ror when under circumstances Ike those
In this record.
FELLOW SERVANTS.
Norfolk and Western Railroad Company
". Honchlus's Admir- Reversed. Opih-
ion by Judge Cardweh
H. was killed while employed as front
brakeman on an extra west bound freight
train No. 213 in collision between that
train and the second section of a regular
schedule train. No. >. at Shumate III
Giles county. The road was single track
cd at that place. Both trains We're run
ming under the general train rules, not
under special orders. No. y Pns In TWO
sections and had right OF way. the eN-
ira should have waited az Shumate llll
both sections passed. II was on the SD
inns, when the first section passed with
green signals-notice that another section
was following. r.. an employee or three
years standing. was familiar with the
rules. lie tho conductor and engineer
all saw the green signals. and knew their
imp0rt When the first section stopped
nj Shumate all the freight train crew
went 10 sleep. VI. lying between the
tracks The conductor awOke just as the
first section left Shumate and asked the
telegraph operator II the second secuoh
had passed. and was told that IL had ear
rving no signals. The others were then
awakened and his train started west ana
the collision ensucd with the second sec
ton. which had not IN fact passed. The
evtro froieh, was not waiting for orders.
nor received any before starting. The ac-
cident resulted from the freight conduc-
tors taking his train ont contrary 10
rules. 49,
The court below Of its own notion
gave two instructions % the jury tho
pist OF them being that ~ was for them
10 determine the question Of fellow SER
want as between the conductor and the
brakeman by the gradauons IN rank or
the two men I'm the service or the com'
pauv. not 10 determine II by the charac-
ter % the negligent act causing the IN
Jury. but making their the conclusion Dc
mend upon whether the negligent servant
was or was not IN authority over the IN
iured one.
Held. The law OF fellow servants Is laid
down by this court IN Norfolk and West
ern Railroad Company VS.. Nuchols, 81
va. 100: and Il was said by Judge Riley
I'm case OF same plaintiff VS.. Ampey, 20
Va. l00. that the question NJ the relation
of the conductor 10 his crew was an open
question TO DO decided when IL became
necessary In deciding IL. the test as TO
the liability of the company Us not
whether the conductor, under the rules IS
given authority over his chew but wheth-
or his negligent act was IN the perform,
ance Of "A duty which the law devolved
upon the company and Is not asslgnaple'
or whether the duty were one OF mere
operation. which is assignable
p Every man taking service on train
as fireman. engineman. brakeman, &c.,
must contemplate its being run under
the orders OF conductor who, though
DESIGNATED as conductor with authority
10 control and direct the men under MIN,
il but a co-labOrer or co-wOrkman with
the other members Of the crew. engaged
i'm a work OF mere operation, common
employment, under one and the same.
common employer from whom all derive
their authority and compensation. a
brakeman. therefore, makes his contract
i'm contemplation Of this superiority 81
service in the conductor. and assumes
the risk Of injury from the negligence OF
ais fellow wOrkmen; and all engaged on
the train stand 10 each other In the re-
Iatfon OF fellow servants. But II the con-
ductor. by authority Of the master, be
performing a duty which the master Is
not permitted by law to delegate, he may
under some circumstances be In the cate
qorv OF principle or vice-principal' never.
however by the mere superiority given
him in operating or moving ms tram.
Soc jackson vs.. NOil'ih anu NNHN'ih
Railroad Company, q $. II. r., 2Is, where
the mon assignable" duties Of a railroad
company are distinguished from the as
slgrabie. ..,..
Until the question OF fellow service
ba controlled by statute as In England
ana some Of the United states. the doc
trine enunciated I'm Norfolk and Western
railroad Company VS.. Nuchols. supra,
and same vs.. Donnelly, SO Va, must be
regarded az settled law in Virginia.
SUMMARY.
Richmond Union Passenger Halfway
Company W.. New York Seabeach Rail-
wav company: Law and Equity court
CIV NJ Richmond. Affirmed.
John w. Rely, J.-Waiker vs.. webster:
chanoerv Court City OF Richmond. Re-
versed. Keith, r.. dissenting.
Wrenn vs.. Moncure; Circuit Court OF
Rockbridge county. Reversed
n u Cardweli. in. & w. X. X. co.
vs. Houchins Administrator: Circuit
court of Giles county. Reversed.
John A. Buchanan, J.-Atlantic and
Danyille Railway Co. VS.. Rieger; Corpo-
ration Court Of the city OF Portsmouth.
Reversed.
Goo VI. Harrison J.-Whlte VS.. New
..s ship Building and Dry Dock
.mylaN. Circuit Court OF warwick
t'A4-Iss-'-
county. Affirmed.