The times. [volume] (Richmond, Va.) 1890-1903, 1898-04-01

care may not be required of him. still he
must use his senses he must exercise
that degree OF care which a man Of ordi-
nary prudence would exercise under like
circumstances before going on the track
(Kimball VS. Friends adm r.. 81 Va. and
cases there cited)
2 There is no evidence tending 10 prove
that defendant knew deceased was on its
track till after he was run over. Had lt
seen him, a man nineteen years OF age
possessed of all his faculties. on or near
the track. il would have had the right TO
assume that he would get out Of the way
OF the approaching train. MARKS admir-
vs.. Petersburg r. Co, IS Va, /: Elliott.
r. RS sec. 1857 And there Is nothing i'm
the evidence tending to show that 1t could
have avoided the injury after il could
have discovered that he was not going TO
do what It had a right to assume that he
would do.
While tfe evidence shows clearly that
defendan. was guilty Of negligence, IT also
shows that the intestate was guilty OF
such oOntrioutory negligence as deprived
him OF tho right to recover. The record
conyIeered as on demurrer TO evidence.
shows mat deceased left a restaurant the
porch of which extended TO within tight
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 approaching train.
with nothing 10 obstruct the view after
leaving the porch the train was backing
a1ou. as fast as a man could walk-not
over five miles an hour-up grade. using
steam. and ringing the bell from the time
it Iegan To back until the accident. These
facts fully justified the jury in finding in
testate Slil,y OF contributory negligence.
PARTIES BY REPRESENTATION.
Harrison &c. vs.. Walton's Excr. &c.
Affirmed. Opinion by Judge Buchanan.
This suit was brought by appellants.
children OF Sally +. Harrison. against
their mother and. Turnbul In his own
right and as executor Of Walton. eharg-
ing a devastavit OF the estate of his tes-
tatrix against the executor for mlscon-
duct in the case OF Harrison and wife VS..
Waltons executor and ais: which latter
suit was Instituted by the father. and
mother of appellants against the appel
lee as executor Of Mrs. Walton and three
OF the appellants all that were then in
being. 10 ascertain the indebtedness OF
Mrs. Walton's estate. and 10 sell so much
OF her real estate as might be necessary
to pay her debts. A history of the pro-
ceedings 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. Appellee demurred to the bill. and
bill dismissed without prejudice TO rights
OF appellants under Sec. 1921. and appeal.
Held The court below erred II 1t dis
missed the bill on the ground that they
could not bring their suit till they became
OF age. Sec. 1924. allowing an infant six
months after attaining age. 10 show
cause against a decree &C.. does not pre-
vent him from asserting his rights by his
next friend as soon as he sees nj. Rich
mond &c. VS. Tayleur. p. Williams 753.
1861; ban. CHI Prac. m. p. l13; Tenants
heirs VS.. Patton, Leigh p. 2OS
2. But where parties have been prop
eriy brought into court having Jurisdic-
ton OF their persons and the subject mat
ter of the suit. and they have had oppor-
tunity TO assert their claims and defend
their rights. and judgment or decree mas
been regularly pronounced, the parties
are concluded thereby. and the matters
therein adjudicated cannot be again ques-
toned by party TO IL In any collateral
proceeding. IL Is binding on the parties
until reversed by appeal. or set aside By
some direct proceeding instituted 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 ease Of another person, such
as fraud, collision or error. Zirkle vs..
Mccue, Is Graft 517. SIS; Pennyhacker vs..