Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-12-03

4 mOval or a cause IN WHICH tue paiho -
son Is one OF the parties when the cas-
has no connection with the conduct wnicl
, produced the ill-feeling. especially wnei
! the witnesses that prove the iii-feelins
: express the opinion that a perfectly ran
and impartial jury can be had In th'
community to try the case. Where tnt
motion for a change has been overrulec
and a Jury free from objection afterwards
been obtained, that fact Is conclusive evi'
dence hat the motion was properly over
ruled. Wrlght's case. 80 Graft. $50
Joyce's case, rs Va, 27S.
2. The same rule applies In the exami-
nation Of a Juror on his voir dire as
when a question is asked a witness which
he is not permitted to answer. In order
to nave the courts action reviewed the
record must show what was expected TO
be proved, the reason being in both cases
that a judgment will not be reversed be-
cause evidence has been rejected, unless
It's materially be made TO appear. Union
Cent. Life-Ins. Co. VS.. Pollard, rs ). Il.
r.. Al, 1923, 424, and cases cited.
3. Where a witness has been examined,
cross-examined, and re-examined, unless
new matter be brought out on
the reorganization, the examination
ought ordinarily TO be consider
ed closed. If new matter be brought
oubut' the Opposite party Oubui "
be permitted to interrogate the witness
as TO 1t. Where a party is exercising an
absolute right the court must know what
his question is before 1t can refuse 10
permit him to ask it; IL exercising a
mere privilege which the court has the
right to refuse or to withdraw, however
much it's refusal may offend against judi
cial propriety. il is not reversible error
when done under circumstance like those
in this record.
FELLOW-SERVANTs.
Norfolk and Western Railroad Company
VS.. Houchins's Administrator. Re
versed. Opinion by Cardwell, j.
III. was killed while employed as front
brakeman on an extra west-bound freight
train, No. 273. In a collision between that
train and the second section Of a regular
schedule train, No. So, at Shumate, in
Giles county. The road was single
tracked at that place. Both trains were
running under the general train rules,
not under special orders. No. 81 was in
two sections. and had right Of way. The
extra should have waited at numat
till both sections passed. 1t was on the
siding when the first section passed, with
green s~ignals-notice hat another sec
ton was following. H., an employee or
three years standing, was familiar with
the rules. He. the conductor. and en-
gineman all saw the green signals. ana
knew their import. When the first sec
ton stopped at. Shumate all the freight
train crew went to sleep, II. lying be-
tween the tracks. The conductor awoke
just as the first section left Shumate,
and asked the telegraph operator if the
second section had passed, and was told
that it had, carrying no signals. Inc
were then awakened and his tram
west, and the collision ensued
with the second section, which had not,
In fact. passed. The extra freight was
not waiting for orders, nor received any
before starting. The accident resulted
rom the freight conductors taking his
train out contrary to rules.
The court below. of it's own motion.
;ave two instructions to the Jury. the
of them being that it was for them
o determine the question Of fellow-ser-
ant as between the conductor and the
by the gradations in rank or
he two men in the service of the COM {
'any; not TO determine it by the charac-
er OF the negligent act causing the in
ury, but making their conclusions de- I
end upon whether the negligent servant
'as or was not in authority over the in
ured one.
Held: The law Of fellow-servants IS
aid down by this court in Norfolk ana =
estern Railroad Company VS.. Nuckols.
/ va l95, and 1t was said by Riley. j.,
J case OF same plaintiff VS.. Ampey. 80 -
a., HS, that the question Of the relation :"
I the conductor to his crew was an Il
pen question. to be decided when il be- Il
.me necessary. In deciding il the test a.
; TO the liability Of the company is not
neither the conductor under the rules o.
given authority over his crew. but n
neither his negligent act was I'm the per- ST
'rmance of a duty which the law de- m
)lVed upon the company and is nom On
5signable, or whether the duty were one M
mere operation. which is a~ssignable.
Z. every man taking service on a tram. Ii,
fireman, engineer. brakeman, &c, CT
ust contemplate its being run under the w
'ders of a conductor, who. though desig- W,
ited as conductor, with authority TO con- bu
oil and direct the men under MIN. is pr
1t a colaborer or coworkman with the ba
her members Of the crew engaged I'm n vi
or mere operation. a common en- be
Oy ment, under one and the same COM m,
on employer, from whom all derive no
cir authority and compensation. A III
akeHian' therefore,, makes his contract be
contemplate Of this superiority Oh fr'
vice In the conductor, and assumes I'M
rlsk or INJURY from the negligence or
) felow-workmen. and all engaged on
2 tram stand to each other in the rela- ~
N or fellow-servants. But If the con- :,
ctor' by authority of the master be s;
a duty which the master is
I permitted by law to delegate. he NAV
der some circumstances be in the cate -u
~ OF principal or vice-principal: never
viewer by the mere superiority given
II IN operating or moving his train.
+, Jackson VS.. n. & w. n. r. Co "
H. X, ZS. where the "non~-assignabIe"
lies OF a railroad company are dlstin-
shed from the assignable.
Until the question of fellov-serv,ca
controlled by statute, as in England
some OF the United States. the doc
ne enunciated in n. e w. r. r 20
Nuckols. supra, n same VS.. DON
~, 81 va, must be regarded as ser
| law in Virginia.
SUMMARY.
ames Keith, P.-Booker We. Donahoo
cult Court of Elizabeth City county
versed. Nounty'
lchmond Union Passenger Railv-,y
npany VS.. New York Seabeach Rail.
y company. Law and EQUITY Court
7 OF Affirmed 4