The times. [volume] (Richmond, Va.) 1890-1903, 1901-01-18

bankment of snow piled along the car
line of the defendant company on Tue
18th Of February. 1893.
asked If she could not have gone TO ner
home from the drug store, as int !
without recrossing Mellen Street through
the ridge of snow.
The court refused to allow. the question
to be asked. This is one of the errors
assigned, and the assignment IS held 70
be good. In this, as in other cases t o.
negligence, the defendant has the right
to show, if possible. that the plaintlfI
was not entitled to recover because OF
contrbutory negligence. She may nave
exercised due care, as she testified, IN the
manner Of crossing the street at. the point
where she was injured. and yet nave been
guilty OF contri5utory negligence IN at
tempting to cross there at all under the
circumstances of the case.
For this and other errors the judgment
OF. the Circuit Court is reversed, and the
case remanded for new trial
INSURANCE BY WAREHOUSEAlAN.
e. III. Boyd, Trustee. VS.. Mckee ct ais
From the Circuit Court of Frederick
county, Opinion by Judge Cardwell
BarrIch. who was the lessee OF 4 gram
elevator and in the business OF storing
and shipping grain. took out policy. of
insurance for $500 upon the following
property: ION stock of grain. grass seed.
&c, while contained in the frame, slate
roof elevator building 1t is understood
and agreed that this policy covers prop
erty described, whether his own or held in
trust. or on commission. or sold. but not
removed-three-fourt clause attached.
The elevator in which this property was
stored was burned and all the property
destroyed.
Previous to the fire Mckee ct ais had
stored wheat with Barrich
In his proof of loss to the insurance
company Barrich made the following
claim:
Wheat belonging to Barricll. S 94G So
Other property belonging to Bar
Wheat held in trust by Barrich.. 500 80
Total loss .........-........ .S';,6e9 -
Bacrich effected Il compromise with the
insurance company, whereby he received
S1.500 in full settlement of the policy of
5000. Mckee and others brought action
of assumpsit against BARREN Tor the
value of wheat claimed by him to nave
been sold to Barrich prior to its loss
by fire.
Mckee ct ais filed their bill in chancery
in the Circuit Court of Frederick county.
setting out all the material avernlents as
to the wheat the insurance, BarrlchS re-
fusal TO account. &c. to which Barrich
filed answer denying said allegations and
asking that they be required to elect be-
tween this and their common law actions:
Later Barrich made an assignment OF
the money received from the insurance
company to e. Holmes Boyd, trustee, for
the benefit OF Barrich's wife and some
Other relatives. Upon the nearing the
vi L
The motions to require the parties to
elect and dismiss their claims from this
proceeding are denied, but upon the clam
of Barrich. in his answer, that com
painants shall be required to accept a
ratable portion of the fund in this case
il eNoneration Of any personal liability
against him in the common law actions.
it is ordered that acceptance of the fund
in this case eStopS the depoStorS from as
sorting any personal liability against Bar
rich in said common law actions inconsls-
tent with their attitude in this case as
depositors: so far as these common la"
actions are pending in this court they are
dismissed and so far as they are pending
in other courts they are enJoined from
prosecuting them.
After providing for payment to Barrich
out of the fund in the cause. the costs OF
policy. fees for settlement and costs OF
suit the decree distributes the residue OF
the f;Ind ratably between Barrich and the
depLs itors Of wheat with him. deducting,
however, from the shares of certain OF
the depositors the sums advanced to them
by Barrich: and further provides that all
accounts decreed to belong to Barrich are
to be paid Boyd. trustee, to be BY nm
applied under the assignment made by
Barrich and that the claim of BushonSi
amounting to go. shall be paid out of
the sum decreed to belong to Barrich.
Bushong having paid Barrich for his
insurance.
From this decree Boyd, trustee, appealed
to this court. ,ss
The Court of Appeals held that the de-
cree, in SO far as it provided that the
share of Bushong in the fund distributed
should be paid out Of the part decreed to
belong to Barrich. must be reversed and
annulled. but in all other respects the de-
cree will be affirmed. with costs TO aD-
pellees as the parties substantially pre-
vailing here and the cause will be re-
manded to the Circuit Court for redis-
triiution Of the fund under the control
of that court in accordance with the views
herein expressed.
THE SUMMARY.
The summary of the proceedings is as
follows:
Judge James Keith, P:
Postal Telegraph and Gable Company
VS.. City of Richmond. Hastings Court
of the city of Richmond. Reversed
Shickell VS.. Berryvile Land and I'M
provement Company. Circuit Court of
Prince William county. Affirmed. Judge
Buchanan dissents.
Judge r. II. Cardwel:
Boyd. trustee VS.. Mckee. Circuit Court
of Fredericksburg. Reversed in part and
affirmed i'll part.
Smith ct ais VS.. Thomas ct ais Cir
cult Court of Augusta county. Affirm
ed.
Miller VS.. Miller Circuit Court of
Buckingham county. Reversed.
Judge John y. Buchanan:
Coalter, receiver VS., Bargamn. Law
and Equity Court of the city of Rich
mond. Affirmed.
Newport News &C Co VS.. Bradford.
Circuit Court of Elizabeth City county.
Reversed.
Mccoy vs.. Norfolk and Carolina Rail-
road Company. Law and Chancery Court
Of the city of Norfolk. Affirmed.
Judge Geo Nj. Harrison:
n. & w. Railroad Company VS. Old Do
:ninon Baggage Co. Circuit Court of
the city of Lynchburg. Reversed.
Judge a. a. Phlegar:
Fitzgerald's eXecutriX VS.. Irby. Circuit
Court of Henrico county. Reversed.
Noting VS. National Bank of Virginia.
Chancery Court of the city of Richmond.
Reversed.
Brown VS.. Bradshaw. Writ of error and
supersedeas. Bond $3.50. Circuit Court
of Dickinson county.
Littral VS.. Carrico, Circuit Court OF
Grayson county. Appeal. Bond $50.
Wright VS. White & Co. Appeal. Bond
$500.
c. & O. Railway Co. VS.. Walker. Cir
ruit Court of the city of Lynchburg Ap-
peal and supersedeas. Bond $500.
Robins eNor. VS.. Fisher, &c. Hastings