Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-04-01

and dangerous rate and then require NM
a. iump from the car. On the contrary
IL was duty TO reduce speed 10 a oe-
gree that he might have left the car
with safety. a.. 49,,
.hn,,td consider the age. experience, and
i,teIIigence OF Quayle in determining now
Co. he was responsible for his misfor-
t,,ne. NOT his age only, but his intelh-
sence capacity, and ability to know the
6onoer and avoid II. Instructions must
10 construed as whole, and though one
- moro he incomplete. they may be cured
hv a complete statement OF the law IN
another or others, so that Wheh Tedh
together the court can see tnat the jury
could not have been misled by the IN
complete instructions.
A general ordinance prescribing
maximum rate Of speed applies 10 each
and all the streets, and the instruction
that the ordinance fixed limit on the
street on which the accident occurred
was not amenable TO operation as mis-
leading.
CARE AT CROSSINGS.
Rangeley's Administrator VS.. southern
railway Company. Affirmed. Opinion
by Buchanan, j. -
The plaintiffs intestate was killed py
train at a street-crossing in Danville.
Action and verdict for defendant com
pany. -,,.a
Held: A person approaching railroad
crossing where gates are required TO pe
Kent and lowered upon the approach OF
trains has no right to presume. if the
gates are not lowered, that no train is
approaching. While the same degree OF
care may not be required OF him, stlll
he must use his senses; he must exercise
that degree of care which man OF ordl-
nary prudence would exercise under like
circumstances before going on the track.
Kimbau VS. Friends Administrator, "a
Va, AID cases there cited.
2. There is no evidence tending to prove
that defendant knew deceased was on ITS
track till after he was run over. Had
II seen him, a man 10 years OF age, pos
sessed Of all his faculties, on or near
the track. it would have had the right
10 assume that he would get out of the
way OF the approaching train. Mark
administrator VS.. Petersburg Railroad
Company. So Va, /; 8 Elliott on Railroads,
section 1885. And there is nothing in
the evidence tending TO show that IL
could have avoided the injury after 1t
could have discovered that he was not
going 10 do what it had a right TO as
sumo that he would do.
While the evidence shows clearly that
defendant was guilty of negligence, 1T
also shows that the intestate was guilty
of such contributory negligence as de-
prived him of the right TO recover. The
record considered as on a demurrer TO
evidence shows that deceased left a
restaurant. the porch of which extended
to within eight or ten feet Of the track;
that he went on or near the track, and
was there standing talking when struck;
that the night was dark, but the locality
was well lighted by electric lamps; that
the track was straight towards the APP
preaching train, with nothing TO obstruct
the view after leaving the porch; the
train was backing about as fast as
man could walk-not over five miles an
hour-up grade, using steam, and ring
ing the bell from the time ii began TO
back until the accident. These facts
fully justified the jury in finding intestate
guilty of contributory negligence.
PARTIES BY REPRESENTATION.
Harrison, etc, VS. Waltons Executor,
etc Affirmed. Opinion by Buchanan, j.
This suit was brought by appellants,
children of Sally T.. Harrison, against
their mother and Turnbull, in his own
RICH. and as executor of Walton, charging
a devastavit of the estate of his testatrix
against the executor for misconduct in
the case Of Harrison and wife VS.. Wal
tons Executor and ais, which latter suit
was instituted by the father and mother
Of appellants against the appellee as exc
cutor of Mrs. Walton, and three of the
that were then, in being
to ascertain the Indebtedness of Mrs
WIS estate, and to sell so much Of her
real estate as might be necessary TO pay
her debts. A history of the proceedings
in that case, and the misconduct relied
on to show the devastavit are set out in
the bill in this case, and with it copies of
portions of the record in that case. APP
pellee demurred to the bill, and bill dis
missed without prejudice to rights of ap-
pelants under section S427, and appeal.
Held: The Court below erred If it dis
missed the bill on the ground that they
could not bring their suit till they became
of age; section 1924, allowing an infant
six months after attaining age to show
cause against a decree, etc. does not
prevent him from asserting his rights by
his next friend as soon as he sees fit.
Richmond. etc. VS.. Tayleur, 1 +. Will
liams. 7SS. 1861; Dan. CHI. Prae.. IN. D..
173: Tenants Heirs VS.. Patton, Leigh,
page pos.
2 But where parties have been proper
~ brought into court, having jurisdiction
Of their persons and the subject matter
Of the suit and they have had opportu-
nifty 10 assert their claims and defend
their rights, and judgment or decree has
been regularly pronounced. the parties
are concluded thereby, and the matters
therein adjudicated cannot be again
questioned by a party TO it on any col
lateral proceeding. 1t is binding ON the
parties until reversed by appeal. or set
aside by some direct proceeding insti-
tuted for that purpose. An infant is as
much bound thereby as an adult, and an
infant can only impeach upon grounds
which would invalidate In case Of an
other person, such as fraud. collision. or
error. Zirkle VS.. McCue. % Graft. ST.
i26; Pennybacker VS.. Switzer, 70 Va, at
page 66S; Minors Inst. 5O7-S.
1t is insisted that only those appellants,
In being. and parties to the suit are bound
by the proceedings in that case.
Held: There are exceptions 10 the gene
raj rule-that only parties or persons
standing In privity with parties are
bound by judgment or decree-of equal
with the rule itself. Baylor VS.
DeJarnette. l3 Graft. l64. Where all the
parties are brought before the court that
Fan be brought before II. and the court
acts upon the property. according 10 the
rights that appear. without fraud its de-
cision must OF necessity be final and con-
elusive. Giffard VS.. Hart. Sch. and Lep.
IS6, 4O7-S; Baylor VS.. Dejarnette. Supra;
Faulkner VS.. Davis. Is Graft, 65i, ESQ.,
fhe appellants not In being when the
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