The times. [volume] (Richmond, Va.) 1890-1903, 1897-09-26

guilty OF coutributory negligence ~ho
goes temporarily ON the platform 10
greet "A friend and bring her into the car'
o. The instructions, taken as wholes
could not possibly prejudice the company,
the paintin being free from fault.
g. Upon well-scttled principles this court
cannot disturb the verdict as excessive,
there being nothing 90 warrant inc peueS
that the jury were influenced by par
tiality or prejudice or were msIed ~
some mistaken view OF the merits or ina
case. y. * W. r.. r. Go. ys. shot. q
Va, g.
PLEADING BURDEN OF PROOF.
Kimbail and Fink. receivers, US. Bor-
den. Reversed. Opinion hy Judge bu-
chanan. Action for damages for negligent
destruction OF property by fire from Loco
motive.
Held: There being no evidence that hre
orielnatod I'm cOmbusuble material which
the company had allowed Co accumulate
on its right OF way. or that property was
DESTROYED 10y nre communicated from inc
defendants right OF way an instruction
ought not 90 have been given i tne lack
Of such evidence 90 prove The 'acts upon
which it was based. The tendency on
such instructions o. 90 mifleod the jury
by Withdrawing their attention from mo
legitimate points involved n the ISSUE
Seaboard and Roanoke Railroad COM
pany VS.. Joyner. 81 Virginia 10. N-'
Mlchie VS. Cochran. 9l Virginia oil 0a,
and many Virginia cases cited.
II a misdircction or other mistake
Of the Court appear in the record It
must be presumed 10 have affected the
verdict and IS. therefore. ground for
reversal OF Judgment unless il plainly APP
o.. d ID
not and could not have anfEted the ver-
dict Fourth Minors Inst. 951i Richmond
Railway Company VS.. Cartwright % Nir-
glnla G27. e3l. and cases cited.
Overruling demurrer 90 declaration IS
also assigned as error that 10 falls 20 set
out whether fire was directly from sparks
from the engine or by fire communicated
from combustible matter burning on IT'S
right OF way. or both, that N construed
as averring both IT sots out two distinct
causes OF action.
Held: Duplicity IN tho declaration re-
lates 10 the form and not 10 the sub
stance. and hence can only be taken adj
vantage Of by special demurrer rs special
demurrers have been abolished, duplicity
rs no longer a ground OF demurrer Nor
folk and Western Railway Company vs..
Ampcry % Virginia i)6
p. While 10 does not state cause OF nc
ton with that clearness ana certainty
which ought 10 characterize an pleadings
so as 20 give notice NJ the precise nature
of the complaint (Bush VS. Campbell -
Grattan p. f3l. 4 Minor SOD. vet a good
cause for action is stated and demurrer
was properly overrulod.
Held further Where fire ls caused by
in1ammable material on RIGHT N way.
or fire spreading from right Of way. tho
general rule applies that tho burden or
proving negligence is on The plaintiff. But
whore he has shown that property was
fred by sparks from tho rnsine ana
right 10 recover ls based on negligence
| Of company I'm using engines ain defec-
| tive equipments or in negligenuy and I'M
/ skilfully managing the engines. the pre-
/ sumption Of negligence az once arises.
| and the burden IS shifted 20 the company
| 10 escape liability. Patterson vs. Chesa-
| peako and Ohio Railroad Company a
! Virginia (25 Southeastern Reports $3.50,
! Elliott on Railroads. section 1872
/ q Evidence OF the emission of sparks
( by the engine near the time OF the fre
| was admissible as tending % prove that
| the fire was probably caused by the en-
] CINE. and also ne tending 20 show a
! negligent habit on the part or company's
agents and employees. ". Y and &.
| Railroad Company vs. Thomas, 02 yir-
| ginia. e06 6l2 and cases cited.