The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1904-06-24
THE SUP RENE
COURT OF VA.
First Decision Under the New
Constitution Of Fellow
Servants Doctrine.
OPERATOR EXCEPTION
Controlling Question, Whether
He Is or Not, Taken Out
by the New Act.
Especial to The TImes-Dispatch.)

Especial TO The Times Dspatch.)
wYTHEv1LLE, VA, June 25.-The
Court OF Appeals handed down the fol-
lowing opinions to-day
BY Judge Keith:
Wheby vs. NOR ct ais, Corporation
Court of Roanoke, reversed.
Ashworth rs. Trammcl Corporation
Court OF Bristol, amended and affirmed.
Judge Eardwell.
Hortenstine VS.. Virginia and Carolina
Railway Company. Circuit Court OF
Washington county, affirmed.
Judge Buchanan:
Hyatt vs.. Zion. Circuit Court Of Lee, re-
versed.
Hicks ys. city OF Bristol, Circuit Court
Of Bristol, reversed.
4 Judge Harrison:
Ramey vs.. Counts, Circuit Court Of
Wise. affirmed. @
HAMBURG Bremen Fire Insurance Com
rany VS.. Browning, Circuit Court OF
tTazewell, reversed.
Ratllff vs.. Ratliff, Circuit Court Of
Washington, reversed; Keith, president,
and r. Cardwell dissenting
~ Judge NV nlttie: VIE
Pardeo vs.. Commonwealth, Circuit Court
Of Wise, reversed.
NennInger vs.. Peery, Circuit Court Of
Bland, reversed.
Virginia and Southwestern Railway
Company vs. Clowcr's administrators, Cor
poration Court of Bristol, affirmed.
PETITIONS FOR APPEAL.
X. Chadwick vs.. Burke, Circuit Court
of Culpeper, writ of error, bond 5000
Gray VS.. Commonwealth. Circuit Court
or Washington county, writ or error re-
fused.
s;outhsldc Railroad Company VS.. Pettus,
Circuit Court of Petersburg, writ of err
ror refused.
Blankenship VS.. Commonwealth, Circuit
Court OF Giles. writ of error refused.
The case Of Hortenstines adninistra-
tor VS.. Virginia and Carolina Railway
Company, decided by Judge Cardwell,
came up on a demurrer to the declaration
and after an exhaustive review of the
authorities. the rule of alleging the causes
of action In general terms and averins
that the injury was inflicted by tho
wrongful act, neglect and default as laid
down in the case of Baltimore and Ohio
Railroad Company KS. Sherman, 80 Graft,
COZ. is overruled.
FELLOWlSERVANT
The case of Virginia and Southwestern
Railway Company VS.. Clower's admins
traitor Is the first in which the court
has passed upon the doctrine Of fellow
servants under the new Constitution.
The plaintiffs interstate was killed by
reason Of the failure of the telegraph
operator to deliver or transmit an order
sent out from the train dispatcher's Of
flee to the conductor of one Of the
fcolliding trains The controlling question.
as stated by Judge Whittle in delivering
the opinion of the court, Is whether or
not telegraph operator falls within any
{of the exceptions Of section l62 OF the
Constitution, taking him out of the cate
cory Of sfellow-servants of the plaintiffs
interstate. 5a
The defendant company insisted that
section 162 should be strictly construed,
and that thus construed, it would leave
the relations between these employees
unchanged. The court holds that what
ever might be said In reference to the
construction OF statutes in derogation OF
the common law. the rule has no APP
plicatlon to remedial provision OF a
Constitution ordained for the obvious pur-
pose Of relaxing the stringency of eX-
listing precedents in the interest of en-
ployes engaged In the dangerous occu-
patton of constructing, maintaining and
operating railroads, and that the order
Is In transit from the time 1t leaves
the train dispatchers office until it
reaches the conductor or person manag-
ing the train. and that every agent OF
the company through whose hands 1t
passes. is necessarily engaged in Its trans
mission until it reaches It's ultimate desti-
nation. That there can be no reason for
holding that a train dipatcher Is not
a fellow-servant Of the train men, to be
affected by the order, but that tele-
graph operator through whom the order
is to be transmitted to the conductor and
the trainmen are fellow-seryants. Each
constitutes part of a conduit, through
which the order Is transmitted from us
source to its destination, and the omis-
sion Of either to discharge his important
function defeats that object.