The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1904-03-11
DECISIONS i. |; J IS
..H,AvDEDID||O|,|.'Ny'.|.|N''||..
Virginia Supreme Court Court 3.s 81 A 1n7i.
pcals Rendered Large Batch Batch
B $Opiniot1s Yesterday
GORDON I|l) CASE REV \ vE {: ! i:

Interesting Cases Some ONE.
Of Long Standing, Revised 3st atS
\ Length and Decided
Yesterday was decision Day N y ttlo
virglnin Supreme Court OF Appeals, ana f'i
the Judges handed down olshitl opinions no
Some OF them are Of abiding local III
terest, and ,all@ure important. lie fol--.
loving are among tho most ] Important l;iT
Richmond Passenger and l'ower Com 911 4
pany John wv Gordon. From the
Law and Equity Courtaof Richmond c T "
OBSERVATION-DISCLOSURES Buchanan: .B{ ia & AZ
Ths actlo,Awas instituted by John = W. ".
Gordon to recover damages Tor in5lt r1le y
ldono him at h street crossing IN II the
city DC Richmord, by alleged ne gligent
running OF nj ecctric ral way cur Pc
rated by tho Passenger and &Eower Y "A on on
pn1iy. Is eight instrtlc Ions q sk !e
for by Gordon's counsel were given !, lDS$
the trial Judge, somo With Notifications
and Il, Iikebmannnr (wltl, modificntlonD
tho three $iSinstr1ctions " asked siS for W
counsel for the defendant company. ,s
8I'llc assignments Of error chiefly re-,
lied upon n arc the giving OF plninttiffs'si
Instruction No. q and the refusal of the
court # Is glvo two Of the DESCENDANTS
asked anu u lie y y ctiotl
OF tho court iii modifying these two N
struotions. INSTRUCTION No which Z the 10
counsel for tile RAILWAY Scon1pa1l Y " obs
}iocted ia, rcatl as follows: i { the jury
,fied that the plaintiff was guilty offf
want of reasonable and ordinary care
In atteinpting#to cross the tracks Of the
under the ctrcumstan ces h re
,ferred y TO. VIZ then he is'3not9 entitled 10
recover. / Ii ,,,,less they believe from the
evidence That the 1notorman could have.
avoided the accident by the use 81 q III
binary, caro-, after he saw or ny tho
use, sof ordinary care might have seell,3
that the plaintiff was on the ira ck.. o.
very near thereto. and drawing towards
the same. and was in danger Of being
struck by theN car: and. tf they SO boz
.lievc, ther they must find for tho plain
tiff "a 4 S&. al I'd n
S15 TcoNTRIBUToRY NEGLIGENCE.
1nRdealing with this instruction. Judge
BuchaIlan goes into an able exposition of
the law of contributorS eGltgcncc. ana
quotes at great length from former de-
cisiors of tic Supreme Court ct ABB
5peals. notably in the case of the Rich
deleol,.i decided BY Judge Dlirks;;i Marks.
VS.. Petersburg Railroad Company deci--
sion by j udge Lewis. and tho Richmond
Passenger and Power COMPANY VS.. Ste
gar. decision by Judge Whlttlc. x The
court says :4.'t'Theso cases establish the.
doctrine that where "A RAILROAD company
or street railway company nows or has
reason TO hellnYe tha T persons are likely
to !he on, their racks q a particular
,oyAf }yt
to such persons. First to Keep "a look.
out in5apprulching such point, and,
secord, to avoid injury when t sees
such persons in peril, II It can bo done
by the exercise OF ordinary care. 8 And
5ifiit fails 10 keep such lookout and there
by falls to SEQ. such persons peril and
inflicts injury, It cannot escape liability.
on that grourd, but It's liability will de-
pond not upon what It actually knew
but upon what it would have known II
1t had performed its duty IN keeping a
proper outlook. And this seems to- be
theGruIe generally" The court did not err
in giving this instruction.
instruction c. as asked for by the
defendant company, was as follows:
THE court further instructs the jury
that II they believe from IT, evidence
that this accident was caused by concur
rent negligence Of the motorman and @ E
John w. Gordon, due TO each falling to
keep 4 proper lookout, they must find for.
tho defendant"
THE RIGHTS OF ALL,
Concerning this 2crs,struction, which
the lower court refused to give as asked,
the court quotes from Beech ON contlibii-
tory negligence ast follows: "
&c the proxlmate cause of the injury
was the neg igencc Of both plaintiff and
defendant concuiTlng and generating
together. then n the general irn le q to
Sccntributory negligence and not the eS-
ception to the 3rule applied and the plain;
tiff was not entitled n TO recover, = and
adds: WIKI @ 5 Ii Re tA4at
'"Ehe defendant therefore, had the
right to have that theory or view OF
there is evidence tending TO prove that
the case COMES within the general rule
as to contributoryS negligence, and also
evidence tending to prove that the. case
comes within the exception to that rule
cnch party has, the right to have his
theory or view Of the case presented to
tile jury by proper instructions. IT any
authority were needed for this state
ment, 1t wtll be found in. the case Of lie,
Richmond Traction Company VS., Martin,
administrators, SUPRA ISL Il z 5 III
TIID LOWER $COU RI s llaRCF "A s
"rhe court, therefore,. erred IN refus-
Ing TO give instruction @, II MS offered,
which presented the defendants theory
OF the case, and whichr.if sustained by
the evidence, would have entitled It to.
n verdict
& I'm the modified form in which the
court gave It, 1t was clearly erroneous,
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