Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-02-08
COURT IIF' De.
DicEsTED BY w. q. MARTIN.
tExclusivay for yirginian-Pilot)
Notes Of Gases Recently Decided,
Which are Of Interest to
Our People.
DANvILLE ST. CAR co. v.
WATKINS,

A BRAKEMAN ON TOP OF A CAR
MUST USE ORDINARY CARE TO
PREVENT INJURY TO HIMSELF
WHEN PASSING UNDER A LOW
WIRE, OF WHICH HE WAS
AWARE THE FACT THAT THE
STREET WOULD BE BLOCKED
AND THE RAILWAY COMPANY
LIABLE TO A FINE DOES NOT
JUSTIFY a BRAKEMAN IN TAX
ING UNUSUAL RISKS. OR AS
SUMING ADDITIONAL HAZARD,
AS TO HIS OWN SAFETY.
AN INSTRUCTION SHOULD NOT
BE GIVEN IF THERE is NO EvI-
DENCE TO WARRANT IT.
This was suit by Watkins, a brake
man on the Southern railroad, for
damages arising from injuries to him
caused by coming in contact with a
trolley wire of the defendant, which
extended over the track Of the South
ern railroad. Plaintiff was familiar
with the position of this wire and had
frequently crossed under it and knew
that he had to stoop to do so. At the
time of the accident he was on top of
q car. and while moving to the next
car came in contact with the wire, was
knocked off and injured.
The court says:
The essential facts are that he (Wat-
kins) knew the position Of the wire;
that the wire was four feet eight inches
above the step upon which he-stood,
SO that by STOPPING he might easily
nave passed under 1t with safety.
There being evidence Of negligence
upon the part of the street car COM
pany In permitting Its wires to sag, as
was done in this case, and evidence of
contributory negligence upon the part
OF the plaintiff in failing to exercise
proper precaution to avoid contact with
the wire. the position Of which was we'll
known to him, 1t became necessary for
the court to instruct the jury, first. as
to the consequences of the defendants
negligence, and, secondly, as to the
contributory negligence on the part of
the plaintiff.
While the defendant excepted 10 all
the instructions given at the instance
of the Plaintiff the error In granting
No. seems to be insisted upon. 1t Is
us follows:
The court lnstructs the jury that,
If they believe from the evidence in this
case that the plaintiff Watkins was
ignorant of the danger that might re-
suit from contact with the electric wire
OF the said defendant over the cars of
the railway company, on which he was
employed. that the law does not require
of him The same degree OF care that
would be required if he knew of the
danger"
Watkins states In his evidence that
he knew nothing about electricity, had
never been i'm Dower-house and did
not know what effect it would have.
that he did not know that CON
tact with wire charged with
other than would be caused by contact
with any other wire suspended over n
street. We are indisposed to entertain
ct fhis day. when electricity is so gen
orally applied as a motive power TO
machinery, plea of ignorance Of It's
dangerous poperties. and it is unneccs-
sary to do so in this case Watkins
without doubt, knew that coming In
contact with this wire subjected him
tn peril, for in the position which he oc-
cupied it would necessarily throw him
from the car between the cars or under
the wheels. Il was his duty to use Or
binary care to prevent any iniury
whatever to himself. and he was guilty
OF contributory negligence If hn-mas
himself the author OF any part Of the
injury of which he now complains. or
If by the exercise of ordinary care up
on his part, he could have avoided the
consequences Of the negligence de-
scribed to the defendant. The 18th in
struction, given at the instance Of the
plaintiff, is as follows: (Here follows
tho instruction..
This instruction embodies e. familiar
principle and as a proposition Of law Is
free from objection. but there are no
facts in this case to which 1t can be
applied
Another error assigned is to the re-
fnGol Of the 6nrnOr1 tn uix
the following instruction asked for by
plaintiff in error:
The court instructs the jury that, al
though they may believe from the evil
deEce in this cause that the said de-
fendant company was guilty of negli-
gence In the manner of constructing or
maintaining It's electric wire over and
above the track of the Southern Rail-
way Company, STILL plaintiff had no
right to attempt to pass from one car
to another while the cars were passing
under the said wire, If in so doing he
increased the danger of an accident
from the said wire, and IL from the evil
dence in the case they believe that the
SAID plaintiff did attempt to pass from
one car to another while passing under
said wire and by so doing did increase
the danger and chance of the accident,
he cannot recover in this case. and the
jury must find for the defendant"
That instruction correctly propounds
the law, and should have been given.
The defendant in error, it is true states
that he was in the performance of n
necessary duty at the time of the acct
dent. He had set one brake, and was
passing to another in order to facilitat to
the disposition of the train and prevent
the blocking Of the street, which, 1t
seems, would have subjected the rail-
way company to a fine, but this duty
was not so urgent and imperative as