The times. [volume] (Richmond, Va.) 1890-1903, 1897-12-17
NEGLIGENT sIGNALs.

ought 10 AVE been overrulcd. y. * W.
Railroad company vs.. B~ohannon, q va.
29J.
Southern Railway Company VI. Iorian.
Amrmed. Opinion by Judge harrison.
The accident occurred where the raj
way crosses a street OF road. one OF the
established highways OF Halifax county.
The locomotive had stopped al, lt not I'D,
the highway, 10 take water, orders &c.
While IL was so standing IOrian passed
along the highway in MS buggy, ana
while crossing the track a lew leet lh
front Of the cngine the whistle was
sounded, causing the horse 10 run OH,
upset the buggy and injure IOrlan.
Held: At public crossings the rights OF
the cOmpamy and the public are mutual
c~o-eXtensive and reciprocal, quallhcd only
by the prior right Of way OF a moving
train. The authority 20 operate "a Iau-
road includes the right 20 make the
noises incidental thereto, as escaping
steam, rafting of cars, &c; also, 10
sound its whistles, bells, &C., and IN Civ
ing the usual and proper admonltlons OF
danger. 1t Is, therefore, not haDle "hlle
exercising its rights in "a lawful and rea-
sOnablo manner for injuries OccdsiOned
by horses on the highway frightened by
such noises. But 10 is limited 10 the
reasonable use Of signals, which rs "a
subject for the jury subject 70 lnstruc-
tion- from the court. 1t is liable When
ElEnnlN are FONlliNW fAA NA""FNf III +|
lessly. or at an improper place, or wnen
not required In the prudent w)rk.'E oi
its trains. as when under a bridge or
very near a highway crossing. ietei'-
burg Railroad Company vs.. Hite,
81 Virginia. 1G7. Was there nesli-
gence i'm this caseY The evidence
was conflicting. Negligence is always "a
question for the jury when there rs d0upt
as 10 the facts or the differences from TIE
facts. The evidence was submitted 10
the Jury with instructions rot excepted
TO bv either side. This court 80 or opllitn
that 10 was quite suflcie1t TO susan.
COMPETENCY Of WITNESS.
Mutual Life Insurance Company OF New
York vs.. Oliver. Reversed. OPINION Dy
Judge Rely.
The excluded witness, 5, was the So
liciting agent OF the company Issuing me
policy. lie was excluded on the ground
that he was one of the original parties
10 the contract, ana OlNer, the other
Marty. being dead, hc was thereby rem
dered incompetent under the second dlVl-
sion Of section 33i6 OF the Code.
Held: The contract maze by OIlVer WIN
the company was the foundation OF tne
suit The Original parties 10 II were
Oliver and the company. They were the
contracting parties, not OlVCr ana the
witness, s., who was Simply inc coHh-
pany's agent and in no Legal senses one
of the original parties 10 the CONTRACT.
And unless he was one or the original
narties 10 the contract, which constituted
ne cause of action and was the subject
of INVESTIGATION. he was not incompetent
TO testify.
der the statute Is not the lact 70 Whlch
such marty is called TO testify, but the
contract or other transaction which IS
the subject OF the investigation. Many
Virginia. cases. including Hughes VS..
Harvey. &C., IS Virginia zJ'i Wager VS..
Parbour 81 Virginia 49,; Han vs.. Rixey,
ibid, 100.
2. Agents are not within the exceptions
20 the comnetencv created by ihe statue
Of persons generally 20 De Wlthcsses'
There is no disqualification expressed or
implied in the statute OF a mere agent
I'm any case. The implication from u is
lust the reverse. NheIe one Oh the
orginai parties IS incompetent by reason
Of anv ~ the causes specified II is, m
eject. provided by the last clause OF the
second division OF section S5l5, thdt the
other party may tesuly IT me contract
or transaction was personally made or
had with an agent OF tse paI's - III
capable of testifying. ana such agent Is
Lie and capable of testifying," thus
/ Mainly implying that SUCH agent would
ie "a comDetent witness. lnc pohcy not
having bpen delivered ana me blank
space in the application not having been
filled, there was no n-'t-',
edemcn, Of its receipt OF the premiums.
nor any such acknowledgements or
rs recent. as would estop the
comnanv from proving II had not been
naid or waived. Consequently evidence
We odnissible TO that end, ana the ques-
ton was a proper one to be asked and
The fact that the record does not show
-, 81 sns,yer would have been TO the
,n.tton nor what the company proposed
IN prove bv the witness Il not material
- no circumstances OF this case.
though usually necessary IN order 10
49, ~ Judgment reviewed. Atlantic
n 10 Denvnie Railroad Company vs.. Ric-
- y. dacidsd al This term, and Union Cen
- ne Insurance Company VS.. poi
- % Sontheastern Reports, 49,. Here
the question Is not one OF relevancy or
materiaity. but OF the competency OF
~ Witness. and whether ne might testify
a. al However relevant and material his
,-estImonv might be; in such case the bill
80 excentions need not state what his
.as,monv would have been In order 10 a
. e ~, the appellate court. Martz.
lSslo- vs NIartz heirs. - Grattan 81.
yNt : tho nlaintin did not found his OBJ
80, "a tho competency OF the witness.
Je.Uha vas the ground on which the
ysu axclnded him. The effect is the
comu md The evidence being excluded on
,ha nIaintIn's objection. he must abide
~ conseouences OF the error.
-" SUMMARY.
1,5ga Iohn w. Rely. Mutual Fire In
Jutrc 'onv ~ NeUr York "