The times. [volume] (Richmond, Va.) 1890-1903, 1898-11-18
OPINIONS BY THE
SUPREME COURT.
The Question of Liability Of Endorser
Passed Upon.
CONTRADICTORY NEGLIGENCE.
Case OF tho Norfolk and Western haiI-
CONTRADICTORY NEGLIGENCE,
Case Of tho Norfolk and Western Rail-
way Company Against Graham.
Cases Involving the Questions oil
PriOritics. Merger and WAIVER

~ N"fftt ~ Nt''
pcQls here yesterday;
Citizens National Bank SIS. Walton Ike
NersCd. opinion by Keith, =.
Fielding walton sold real estate heir.
Jointly. thc cash payment was t4"'l'1
divided. and of slN ncfoiiaoie notes ior
tho C.fcrrca payments. each look tnree
as I'm fgu az bis share OF the proceeds.
There notes were payable TO Mm' NJ
Fcldlnr and S. A. Walton. or order 30
each endorsed 90 the other. The endorse
ment on the motto ln controversy being,
"For value received. j hereby assign and
transfer unto VIM 81 Fielding an right
tito ana interest," that may have in the
within lote S. a. walton ana after
wards D. was endorsed dn blank by w
NJ Flc.dlus.
la The course Of business the bank be-
came owner of This note. and IL was pro-
tested FOR n0n-paymcnt. and notice there
Of given to the ondorsers Walton and
Fielding. lu the action that followed
Walton claimed that he was not liable as
Cudorser and did not endorse, and that
he was not liable as assignor because
the hank had not used due diligence
against The drawer or against his oval
t0ns) assignee Judgment for defendant
and Two errors assigned.
First Walton was permitted 90 tes-
tify ia bis own behalf-practicaily as the
facts are set out above.
HcG The testimony was improper;S
admitted. When the legal import Of
contract - clear and definite the inten-
ton Of the parties is. for an substantial
purpose. as distinctly and fully express
Cd as IL they had written out i'm words
what the law implies Though the writ
ing be only a signature as an endorse
ment in blank. yet where the law attaches
20 10 clear uncquivOcal ana definite i'm
port the contract can no more be varied
or cOntradicted by evidence Of a cotcm-
porancous par1l agreement than II IL had
been fully written out These general
principles are of the utmost Importance
in the administration Of justice With
out them there would be no certainty I'm
!. written contracts. no safety IN the most
formal transactions. They ought not TO
he FILTERED away by nice distinctions to
meet the hardshlps. real or supposed, Of
particular cases. Woodward, Baldwin d
Co VS.. Foster IS Graft POS; Martin vs..
Lewis. so Graft 6S2
@ The note was payable 10 two payees.
both Of whom had 90 endorse to pass title.
Neither could negotiate 10 without the
assent Of the other. To make II exclu-
sively Fieldings 1t was necessary that
Walton endorse IL. lie could have linn
lieu Ills HhNiNlh IA "a restrictive endorse
ment but the endorsement made by him
Is equivalent 20 an endorsement IN blank,
and is presumed 10 have been so made in
order 90 give IL credit by his name. There
10y Doc clothed Fielding with power TO ne
gOtiltc. and an innocent purchaser took
~ freed from any equity between him and
Fielding. Daniel on NcgO. lnsts.. sec
64 Parsons on pills and Notes 8.
The other assignments that no motion
was made for "a new trial in the Circuit
Court and the plaintiff in error is 10 be
considered as having waived his excep-
ton. has no application en- this case. Here
jury was waived and the whole matter
submitted 10 tho court II would have
been an idle form to move for new trial
upon the same law and evidence upon
which the court had Just rendered judg-
ment. Newberry VS. Williams. 50 Va. 299:
Town of Bridgewatcr VS. Anemong, %.
va. 5i2; y. q w. r. CO.. vs.. Dunnaway. 90
Va. g.
CONTRIBUTORY NEGLIGENCE.
\. q W. Il. Co vs.. Graham. Reversed.
Opinion by Keith p.
Graham was a helper in the companv's
yards. The yard foreman directed
Lowry TO go with am engine and move
car 20 a point I'm the yard where some
car wheels had been deposited for re-
others % 20 with him. In loading the
wheels on the car "a brake rod was in
the way Of the workmcn and it was low
cred by Graham and others by the fore
mans orders. The loading was done
without accident. when the foreman di-
rected the men 10 take the Skid. which
had been used in holding back TO the
place where they had got 49, then 10
move the car 90 "a certain point and not
50 no tho hrutn hnH
been replaced. The foreman went else
whore and Lowry. with the engine. era
ham and others. proceeded 10 execute
the foreman's orders. When the place
where the skid was TO be unloaded was
reached Lowry stopped and the skid was
taken of. and Graham. VINO understood
the foreman's orders to be that he should
replace the brake as soon as the car stop
ped. went under the car al the end farth-
est from the engine. got down upon the
track and with the assistance Of Robin
son who stood upon the car md held tho
brake rod In am upright position pro-
Ceedcd TO fastcu 30 I'm place. Neither
Lowry nor Gilmore (who had also got
on the engincl knew OF Graham's dam
EerOus position Robinson gave them no
warning. ticking 1t for granted that Gra-
nam had gene under the car with the
knowledge that 30 was not 90 Doe moved.
Both Gilmore and Lowry testify that Gil
more rang the ben. ass many as five
strokes. whcreupon Lowry put the en-
g.nc I'm motion. Robinson then called
80 Lowry 20 stop which hc did as
promptly as possible but after serious
and painful injuries sustained by era
ham: neither Graham nor Robinson
heard the bell.
Held. To go under car attached 20 an
engine under such circumstances. with
out notifying the enginemar was am act
of negligence. The facts proved show
that tho peril incurred was such as "A
man Of ordinary intelligence must have
seen and understood. His indiscretion
was the immediate cause Of ris injuries
The evidence fails 20 disclose negligence
by the defendant company While 10 is
one Of Tho duties OF a railroad company
60 prescribe rules FOR the conduct of its
affairs 30 h impossible 20 formulate rules
20 every simple service OF its employees.
somethinr is necessarily loft 20 the care
md discretion Of the employees them
selves. Moore Lime Co VS.. Richardson,
o. Va. f7G
IIOORTTIEs. MERGER.
ltorer So ys. Ferguson &c. Affirmed.
Opinion by Keith. y.
Underwood rot Judgment against Payne
& Co. az thc March term. 1893. docketod
april . 1873. thc lien relating back TO the
beginning of the term Execution and
forthcoming bond dated May G. 1893. with
RorCr a. liH.nr .n.t.rfff.. f,r faffag Mo-,