Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-12-17
NEGLIGENT SIGNALS.

NEGLIGENT SIGNALS.
Southern Railway Company vs. Torian.
Affirmed. Opinion by Harrison, J.
The accident occurred where the rail-
way crosses a street or road, one of the
established highways of Halifax county.
The locomotive had stopped at, II not In,
the highway TO take water, orders, etc,
While IL was 80 standing Torian passed
while crossing the track a few feet In
front of the engine the whistle was
sounded. causing the horse to run of,
upset the buggy, and inJure Torian.
Held: Al public crossings the rights of
the company and the public are mutual,
coeXtensive, and reciprocal. qualified only
by the prior right OF way Of moving
train. The authority to operate q rail-
road includes the right TO make the noises
incidental thereto, as escaping steam,
rafting Of cars. etc; also, to sound It's
Whistles bells, etc, and IN giving the usual
and proper admonltions of danger. 1t 49,
therefore, not liable while exercising It's
rights I'm lawful and reasonable manner
for injuries occasioned by horses on the
highway frightened by such noises. But
il Is limited TO the reasonable use OF sig
nails. which is a question for the jury,
subject to instructions from the court II
Is liable when signals are sounded care
lessly or recklessly, or at an improper
place, or when not required in the pru-
dent working of IL trains-as when under
a bridge or very near a highway crossing
petersburg Railroad Co. VS.. Hite, 81 Va,
100. Was there negligence In mis- caseE
The evidence was conflicting. Negligence
is always a question for the jury, Wnen
there Is doubt as to the facts or the in
ferences from the facts The evidence
was submitted to the jury, with insuuc-
lions not excepted TO by either side. This
court is of opinion that IL was quite SUM-
cient TO sustain the verdict
COMPETENCY OF WITNESS,
Mutual Life-Insurance Company, Of New
York. vs. oliver. Reversed. opinion py
The excluded witness, s., was the So
letting agent OF The company issuing the
policy He was excluded on the ground
that he was one Of the Original parties
to the contract, and Oliver, the other
party, being dead. he was thereby rem
dered incompetent under the second di-
vision of section 1916 of the Code.
Held: The contract made by Oliver with
the company was the foundation. OF the
suit The Original parties" to II were
Oliver and the company They were tne
contracting paIties-not Ohyer ana the
Witness s., who was simply the COM
pany's agent. and in no legal sense one
of the "original parties" to the contract;
And unless he was one of the original
parties to the contract, which constituted
the cause of action. and was the subject
of investigation, he was not incompetent
The test of competency Of party under
the statute Is not the fact 10 which such
or other transaction which is the subject
OF Investigation. Many Virginia cases IN
Guiding Hughes. &c, VS., Harvey, &c, q
Va 207; Wager VS.. Barbour, 81 va, AIS
Hall VS. Rlxey, Id, $50.
2. Agents are not within the exceptions
10 the competency created by the statute
of persons generally TO be witnesses
There is no disqualification, expressed Oh
imnlied In the statute of a mere agent
i'm any case. The implication from IL u
inst the reverse Where one of the origi'
nal parties Is incompetent by reason OF
any OF the causes specified, II is, in effect
provided by the last clause of the SECOND
division OF section 3246. that the othel
PARTY may testify II the contract oil
transaction was personally made or hac
with an agent of the party so incapable
capable OF testifying," thus plainly i'm
plying that such agent would be com
netent witness. The policy not having
been delivered, and the blank space. y
the application not having peen ill,eu
there was no unequivocal acknowleg
ment OF the receipt OF the premium, mol
any such acknowledgment Of its receip
as would estop the company from prov
ing 1t had not been paid or waived Con
sequently, evidence was admissible e
that end. and the question was propel
one TO be asked and answered.
The fact that the record does not snow
what the answer would have been 10 th'
question, nor what the company propose6
TO prove by the witness Is not materla
under the circumstances Of this case
though usually necessary in order to ha a,n
the Judgment reviewed. a; 4 d; Z; H. 20
Union Cent. Life-Ins. Co. VS.. Pollard, .
5. f r. 42s-i Here the question ON, Is :, no 10
competency of the witness, ana whetne
he might testify at all, however reievan
and material his testimony might oi De; No u
| such case the bill OF exceptions neeu 10
in order TO a review by. the appeliat'
court. Martz exe'r.,, VS.. MartS n ls,
Graft. 307 While the piaintiit dld 10
found his objection TO the Incompetence!
Of the witness, yet that was the .groun.
on which the court excluded him; the hs, sr
aawciuded on the plaintiffs objection, n
must abide the consequence OF the error
SUMMARY.
Judge John w. Rely; Mutual tIre1 1T,
surance Company. OF New YORK. VI w., VI
Der Court Oh Law and Chancery, CITY o
N,nrfoik Reversed.