Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-02-11
COURT DECISIONS.
DIoEsTED BY w. B. MARTIN.
Exclusively for virsln.an-Piiot)
Notes of Cases Recently Decided,
Which are Of Interest to
Our People.

RICHMOND t. CO. v. HILDEBRAND
Supreme Court Of Appeals Of Virginia.
January Is, 1900.
A PARTY is EsToPPED FROM DE-
NYING THE EXISTENCE OF A
FACT ASSUMED IN AN INSTRUC-
TON ASKED BY HIMSELF.
WHEN A DECLARATION ALLEGED
THAT THE PLAINTIFF WAS
STRUCK BY 4 CAR UPON ~
TRACK, upon WHICH SHE HAD
JUST STEPPED" 1T SHOWED
CONTRADICTORY NEGLIGENCE.
AND ~ DEMURRER TO II
SHOULD BE SUSTAINED.
This was q suit for damages to plain
tiff from being struck by n car of de-
PENDANT company. There was n verdict
and Judgment I'm the lower court for
$4,000 for the plaintiff, and defendant
appealed.
The court says:
The court is further OF opinion that It
was error to give instruction No. 6 for
the plaintiff. This instruction tells the
jury that, If they believe from the ev-
idence chat the plaintiff in stepping
upon the track of the defendant at the
time Of the accident failed to look and
listen for the approach Of q car upon
said track, yet she is not discntitled 10
recover on that account, IL the jury
further believe from the evidence that,
by looking or listening, She could nei-
Their have seen or heard the approach
Ing car" AS an abstract proposition.
this statement of the law is sound, but
n1n Is ia 1,A Il
which it could be predicated 1t was,
therefore, calcula ted to mislead the
jury, and for that reason should not
have been given. This error, however,
IL there were no other, could not avail
the plaintiff In error, for the reason that
In its sixth instruction the same fact
was assumed that was assumed by the
instruction complained of. ~ party
cannot invite the court to commit error
by asking for an erroneous instruc-
ton. and be permitted afterwards to
have the verdict set aside for the er-
ror into which the court has been thus
misled.
The action of the lower court in over
ruling the demurrer to the declaration,
and each count thereof, is assigned as
error. ard should have been first con-
sidered in dlsposing of the questions
raised.
As the judgment complained of must,
for the reasons already given. be re-
versed, we feel less hesita ton in hold
ing the declaration defective in stating
a good cause of action.
The declaration repeatedly states that
the plaintiff was struck by the defend
ant company's car while she was on its
truck upon which she had just stepped
This language, in the connection used,
construed most strongly against the
pleader would convey the idea that the
collision which caused the injury was
simultaneous with the act of the plain
tiff i'm stepping upon the track. It
would seem to follow necessarily from
this construction of the language that
the plaintiff was guilty of negligence
In stepping Immediately in front of a
rapidly moving car, the consequences
of which could not be avoided by the
utmost care on the part OF the defend
ant. lf this be the correct interpreta-
ton of the language of the declaration.
then the demurrer should have been
sustained, for the plaintiff could not
recover upon the cause of action stated.
Dun V. Seaboard r. r. Co, rs va. 6t5.
An opportunity Will. however, be given
the plaintim to amend her declaration.
and make clear what is 10 cay tho
least in doubt In respect to the mcan-
ing Intended to be attached to the Ian
guage referred to. Reversed.