Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-03-02

certained that the verdict was In fav-
or of the defendant: and when the
Judge, upon the converting of court next
day. was about to receive, the verdict
of the jury, counsel for plaintiff moved
to dismiss the case. The court, upon
objection OF COUNCIL for defendant.
overruled the motion to dismiss, and
ordered that the verdict be entered OF
record, which was done.
Under the decisions of this court, the
paintif has this privilege al any time.
even after the commencement of the
trial, provided it is exercised before the
rendition or publication of verdict.
Manifestly there is no right on his part
TO dismiss the case after q formal re-
turn by the jury of their verdict into
court, and after counsel had thus been
made aware of the result of the trial.
In this, case permission was given by
the court for the jury to dispense after
they had found their verdict, and they
were also authorized to make known
their finding TO the counsel who repre-
sented the contending parties. 1t was
ascertained by counsel for plaintin.
during the recess of the court, what
the verdict was. So far as the right OF
plaintiff to dismiss it's action was con-
cerned, we think the ascertalnment of
the verdict in this way was tantamount
to its publication. In Peoples V. Root.
As Ga. 592, it was decided that the
may QiSlillSS HIS case at any
time before the verdict is published. if
unknown TO him.
The authorities seem to be uniform
to the effect that, where there is failure
on the part of the warehouSeman to de-
liver goods on demand, there is pre-
sumption of liability. and the burden
is on him of accounting for the goods:
but il does not follow from this that
the burden necessarily remains on him.
throughout the case, for he may ac-
count for the goods by showing their
loss in such way (by burglary or an
accidental fire, for inStance) as will
SHIFT the onus, and will raise the pre-
sumption that the loss thus accounted
for was not the result of the ware
housemans negligence. But we do not
deem 1t necessary to pass directly upon
TINS question in the decision of this
case. Even IL the onuS prObandi was
upon the defendant to the fullest extent
claimed by the plaintiff in error we
think it was successfully carried by the
uncontradicted testimony in the case
The theory OF plaintiffs counsel evil
IDENTIFY was that the fire was commu-
nicated to the warehouse from the en-
sine that was being operated by the
contractor. and was the result of negli-
gence. in not having the engine pro-
Nided with spark arrestcr. or with
some contrvance to prevent the spread
an employee of the defendant COM
pany this negligence was attribute blo
10 the company. There is no question
under the testimony. but that the party
engaged in the operation of this en-
CINE was an independent contractor,
and was not subject to any direction
and control in the management of his
machinery and In the operation Of his
business by the railroad company.
The act which the contractor was do
ing was in violation OF no duty i'm
posed by contract with the employer,
nor i'll violation of any duty imposed by
the statute: and the employer did not
retain the right to control the time and
manner of executing the work. or in
terfere and assume control, so as to
create the relation of master and ser
want: nor did the employer ratify the
wrong of the independent contractor.
Where none of these things exist 1t
manifestly follows from the statutes
above cited that there can be no Iia-
bility on the part of the employer.
we think the Court was right in
overruling the motion to dismiss.
Judgment affirmed.