Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-04-02

Ds Sonne other mode OF conveyance The
sravamen OF this action is the negligent
Ialure OF the defendant 10 use proper
N"le 10 protect the deceased from dan
s.' on us premises while he was there
az the defendants invitation. This
Is the plaintiffs case and the issuo tho
defendant had 10 meet. and II ia fuIIv
"nu clearly set forth in the declaration.
WIN all necessary narration of the cir
cumstances. VIZ VI
INC second assignment or error Is 70
.ne action OF the court I'm giving It's
instruction and I'm refusing or modifying
certain instructions offered by the de-
iehnant. All that was proper 10 be
sNeh in those instructions asked for
oy the defendant and refused by the
SOutt was fully covered by the nine
INSTRUCTIONS given by the court. which
present every legal proposition arising
on the issue 10 be tried by the Jury. and
without approving the entire accuracy
OF each OF the instructions given. it is
snuiclent TO say that the defendant was
not pr9udiced thereby. ali Of fits rights
having been literally guarded and pro-
tected.
COMPANY WAS RESPONSIBLE.
one OF the instructions asked for by
TOE defendant and refused was the basis
Vi an earnest contention in argument
mat the balloon ascension was made by
refer Blum as an independent cOntrac-
Tor and that the defendant was. there
loTe, not responsible for his negligence.
Blum was not exercising an independ-
ent employment on the occasion I'm ques-
ZION. but If he had been. that fact
would not have affected the responsible
hty OF the defendant. or relieved II
from the duty Of exercising due care
IN keeping its premises reasonably safe
Tor those persons it had invited TO come
upon them. Boswell on Personal Inju-
res. section &C.
In the case Of Curtis vs.. Kilcy. 153
Massachusetts. 123, the plaintiff sued
the defendant landowner for injuries re-
ceived by falling into trench IN the
yard. The landowner made defence on
the ground that the trench and yard
were In the control OF an independent:
contractor who was laying drain pipes
therein for the defendant The court
however ruled against this defence. hold
Ing in its opinion as follows: 1--WE think
that the case falls within the rule that,
when the owner OF premises which are
under his control employs an independ-
ent contractor TO do work upon them.
which. from its nature. - likely 10 rem
der the premises dangerous 10 persons
who may come upon them by the in
ytation Of the owner, the owner is not
relieved by reason Of the contract from
the obligation of seeing that due care
is used TO protect such persons. The
owner cannot continue to hold out the
invitation without being bound to ex-
ercise due care i'm keeping the premises
reasonably safe for use, according to the
invitation"
In the case Of Bib VS.. Norfolk and
Western Railroad Company, 81 Virginia.
IN. it is said: NO one can lawfully
delegate to another authority to do an
unlawful act nor can one upon whom
the law imposes the performance of a
duty relieve himself from responsibility
for its non-perfOrmance by committing
its performance to a substitute" And
again: $50 il is the duty Of every per
son who does in person or causes to be
done by another an act. which. from
its nature, is liable. unless precautions
are taken, to do injury TO others, 10 see
TO IL that those precautions are taken;
and he cannot escape this duty by turn
ing it's performance over to a contrac-
tor"
The refusal Of the court TO set aside
the verdict as contrary to the law and
the evidence constitutes the defendants
third assignment OF error. The verdict
of the jury is fully sustained by the
evidence. and there being no error TO
the prejudice Of the defendant in the
instructions given. this motion was pro-
perly overruled.
For these reasons. the judgment of the
Circuit Court must be affirmed.
Caution should BE Exercised.
Another exceedingly interesting local
case decided yesterday was that of
against the Chesapeake and
Ohio Railway Company. the opinion in
which was preparedsby Judge Buchanan
This was a suit on tho part of the plain |
tiff 10 recover $4,000 damages against the
defendant company for injuries received
on the tracks of the Chesapeake and Ohio J
near Hollywood Cemetery. about ten
years ago. while said Blankenshp was
but a child. The jury in the Circuit
Court Of the city Of Richmond awarded a
verdict in favor of the defendant com
pany and an appeal was taken TO the
Court Of Appeals
as to why the judgment Of the lower
court should be reversed.
In the trial of the case the plaintih |
offered fifteen instructions, and the de |
PENDANT eight, all Of which were refused !
by the court. and in lieu thereof It gave |
five OF its own
The Supreme Court considered the ques
ton whether the instructions given |
by the Court correctly stated the law |
applicable to the case and properly sub
mitted it TO the jury.
The Court of Appeals said that 1t wa |
the duty Of the railroad company TO ex
ercise reasonable care to discover am |
not TO injure persons whom (whetho |
they were trespassers or lcensees) i' |
might reasonably expect 10 be on MS |
tracks at that point. One of the in /
structions asked for by the plaintiff l. /
The lower court contained this language |
The law does not require that child |
shall exercise the same degree OF care
and caution as person OF mature years
but only such care and caution as |
person of its age and discretion would |
naturally and ordinarily use
This instruction correctly states thc
law" saws Judge Buchanan, land j.
ought TO have been given"
The opinion goes on: although the |
plaintiff may have been guilty Of con
tributing negligence. he would still Do |
entitled TO recover if it appeared that tn
of the defendant in charge Of
the engine did not do all they could, con
sistently with their own safety, TO avoii
the injury after his danger was known
The judgment Of the Circuit Court wa
reversed and a new trial awarded.
Litigation over n Negotiable Note.
The opinion in the case of Shields ano
theirs against Mahoney and others. from
he Circuit Court Of the city of Norfolk
vas prepared by Judge Keith. In this
suit ]. and T.. Mahoney had obtained
Judgment against Frank Shields, and
sued out an execution upon it, which
hey placed in the hands of the City Ser
seant Of Norfolk to be levied, and there
Dv acquired a lien by virtue of section
1901 of the Code of Virginia, on all the
,ersonal estate of or 80 which their