The times. [volume] (Richmond, Va.) 1890-1903, 1900-09-23


tached, in which passengers are seated,
as the law imposes in the transportation
of passengers on trains specially provided
for that purpose.
. When a person becomes a passenger
on a freight train ne assumes the risk
and Inconvenience necessarily and reason
ably incident to that mode OF travel, put
life and limb are as valuable in the caboose
as in the palace car. and the degree OF
care required TO avoid damage to the pas
serger is as high in the one case as the
other.
g Where an injury happens as the result
of such an accident as set out above. the
presumption IS that 1t occurred by the
negligence of the railroad company, and the
burden of proof is on 1t to establish that
there has been no negligence whatsoever
and that the damage has been"caused by
inevitable casualty Or by some cause which
human care and. foresight could not pre-
vent. In the case at bar, the ptainul
has failed to sustain the burden thus i'm
posed upon it,
4. The verdict cannot be disturbed upon
the ground that it is excessive, there being
nothing to Indicate that the jury ID as
pertaining the damage acted under the
impulse of an improper motive, gross er-
ror, or miseonception of the SUBJECT
BENNINGTON VS.. c. & O..
Rirmineton vs. C. & O. Railway Co. From
the Circuit Court OF Botetourt county.
Opinion by Judge Harrison Affirmed.
This is an action Of treSpasS on the case
in assumpsit brought to recover damages
for personal injuries alleged to have been
sustained by the plaintiff through the nesa-
gence of the defendant.
Suit was not brought within one year
from the time the cause OF action arose;
defendant filed It's plea of the statute OF
tot (which sustained. Con-
tended that the one year statute Of llml-
tations does not apply, that his is an ac-
ton ex contractu, brought to recover dam
ages for the failure OF the defendant 10
safely transport the plaintiff over its rail
road from Buchanan, Va, to Harvey, w.
Va. and that it is governed by section
1920 Of the Code, which prescribes q I'm
itation of three years upon all contracts
except those specially mentioned therein,
and as to which some other limitation
is provided by said section.
Position held to be untenable; that the
limitation is not determined by the form
of action but by its object. If the thing
complained of is an injury to the person,
the Limitation in assumpsit is the same as
II the action were In form eN-dalicto. Inc
object of the suit at bar being to recover
damage for personal injuries alleged to
have been sustained by the plaintiff the
limitation in tort actions is applicable.
Contended that even if this be regarded
and treated as a tort action, it would
not be barred in one year: that under the
law as it is now. the limitation upon such
action Is five years.
Prior to January @, 1884, this acton,
being to recover damages for personal in
iuries, would have been barred. unless the
SUIT had been brought within one year
from the time the injury complained OF
was inflicted (Anderson VS.. Hygeia Hotel
Co., 90 Va, 6S1.)
Held that the amendment to section 1906
of the Code was not intended to change
or affect the period of Limitation to actions
for personal injuries and that such ac-
toms must, as heretofore, be brought with
in one year next after the right to bring
tie same shall have accrued.
A claim for special damages laid in the
declaration, for indirect and Incidental
damages to the plaintiffs estate arising
from an injury purely personal in ats
nature, does not cause the action, brought
to recover for such injuries, to survive
AIumpower vs. City OF Bristol
GRUBB VS.. BURFORD.
Grub VS. Burford. From the Circuit
Court of Botetourt county. Opinion by
Judge Buchanan. reversing the case.
Error assigned to the action of the court
in overruling the demurrer to the decla-
ration and to each count thereof. The
ground of demurrer To the whole declara-
ton is that there is a misjoinder Of counts.
All the counts are common counts In as
sumpsit, except the last, which is spe-
cial count upon or for the breach of an
agreement under seal. At common law
such counts cannot be united in one de-.
claratio1, and such misjoinder would be
fatal 10 a general demurrer
since an action of assumpsit viii lie upon
q cause OF action in the last count as well
: ,Inon the several causes in other counts,
held that they may be properly united in
one action OF assumpsit.s
The plaintiff leased from the defendants
certain Iron ore lands and other property
for the period OF one year, with the right
TO renew the lease for further term
upon conditions named. The lease pro-
v!des that the lessee may. at his option.
renew fhe lease and continue this letting
On the terms and conditions set forth
The lessee.s right to a second term by
the axIress terms OF the agreement Is
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