Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-12-17
In THE CITY'S FAVOR
EIGHTH-sTREET TUNNEL CASE DE-
CIDED IN SUPREME COURT.
The COMPETENCY OF WITNESSES.
Law and Chancery Court of Norfolk
Reversed I'm an Interesting Case
Involving This Question-Other
Matters Passed Upon.
Matters Passed Upon.

Opinions were handed down in four
cases yesterday in the Supreme Court OF
Appeals. The most interesting one to
Richmond people was that in the Petico-
las case, growing out of damage to pro-
perty by the caving-in of the Eighth
street tunnel several years ago. Follow
ing are digests Of the opinions submit
ted:
Peticolas VS.. City Of Richmond Affirm
ed. Opinion by Buchanan, j.
This was an action for damages for in
jury to land, etc, by reason OF the tun-
mel OF the Richmond and Chesapeake
Railroad Company. A special plea was
fled by the city, alleging that plaintin
had heretofore recovered a judgment
against the company for the same cause
of action. Plaintiffs motion to reject
this plea, because it did not aver that
said judgment had been satisfied, over
ruled. and writ of error.
Held: Such averment was unnecessary
CWilkes VS.. Jackson, Hen. & NUM-, S55,
which sustans the common-law doctrine
upon the subject as understood in Eng
land, as well as in this State). While 1t
is true that the case cited is in conflict
with most of the decisions OF the courts
of this country, including the Supreme
Court of the United States, this court
has neither the right nor the inclination
to override 1t, IL being in accord with
the common-law doctrine. as administered
I'm the English courts before and since II
was rendered; has been referred to with
approval in our own courts willis VS..
Jackson. l Munf., 459; Browns Admins
traitor VS.. Jackson. 10 Graft. 66o). and no
effort has been made to change il Dy
statute though the Legislature has made
changes in like rule OF the common
law as to Joint obligors.
GROSS NEGLIGENCE.
Tutwiler VS.. Chesapeake and Ohio Rail-
way Company. Reversed. opinion by
Harrison j.
The evidence tends to prove that the
company permitted combustible material
to accumulate on Its right of way; that
strong wind was blowing thence to-
wards the property burned; that the pro-
gress of the fire was from the point where
the combustible material was burned
along the gangway to the mill; that the
side of the mill next the railway burned
first: that an engine and train passed
OPPORTUNITY to cause the f1re; and that
the engines usually emitted sparks at this
point, and sometimes beyond the mill.
Held: A railway company may have
the best engines equipped with the most
| approved apparatus operated by most
| sklful engineers; may do all that skill
and science can suggest in the manage
| ment of its locomotives, and yet be guilty
| of gross negligence in allowing the ac-
| emulation of combustible material upon
! its right Of way easily 10 be ignited by
sparks from It's engines, and thence com
municated to adjacent property or. q ID
| Railroad Co. VS. Medley, Is Va, 52; n
! Y. =. & y. Railroad Co. VS.. Thomas 3.
| Va. 603). The testimony was sufficient
! to justify the verdict. and the demurrer
| to evidence ought TO have been overruled
! IN. q W. Railroad Co. VS.. Bohannon, Q
! Va, 295l.