The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1910-03-01
JUDGE DAY TON is
REVERSED BY SON
Circuit Court Of Appeals Holds
That Lower Court Erred
in Directing Verdict.
GOES BACK FOR NEW TRIAL
Miss Elizabeth White Awarded
$500 Against Railroad at
Former Hearing.

Judge Dayton, OF the United states
Circuit Court for the Northern Dlstrict
az West Virginia, was reversed yes
terday by his son. Arthur ). Dayton
counsel for the Baltimore ana ONO
railroad. wnen the United states Cir
cult Court of Appeals renderedtaI oplh-
ion by which the verdict awarding
Elizabeth White damages against the
railroad is remanded TO tne rover
court for "a new hearing. me case,
which as been styled that VI the son
against the father" has much attIact-
ed attention, and the Veruiet Ieiaereu
nero mas been eagerly watched by at
,orrevs IN Virginia, West Virginia and
Maryland.
The especial point involved is con-
tanned in this paragraph from the
onin,on written by Circuit Judge Goff,
of the Circuit Court of Appeals. which
IS concurred In by Circuit Judge Prltch-
ard and District Judge BOYD:
"Wherc there is no controversy as
20 tho facts. and the reasonable and
legal differences to be Drawn there-
sren, alleged negligence, based on such
tacts 10 for the court, and not Tor the
INV 10 decide but in the case mere
tho tasttnonv was such that whether
or not there was negligence III ruh-
Ming the train as formed unueF tHe
circumstances, in our opinion became
an issue OF fact for the jury ana was
not a question of law Tor .he eoui :.
for 1t has also become d .eeos ny. 90
principle in the adhllflstldtlo
!, ~. ~ negligence Shat where the Facts
and circumstances accompanying and
surrounding an alleged Negligent act
arc such that reasonable men may
fairly differ as to whether there was
negligence or not, the issue IS ior the
Jury. and should be SO decided.
Held Rond Responsibie.
In his charge to the jury. BY Whlcn
Misc White was awarded $500 dam
oges Tor injuries sustained while
na sscnrer on Baltimore and ONO
train. Judge Dayton held:
."ro my mind 1t was negligence, ana
as matter of law charge 20" u
was negligence for the raiiroau conf
pany, under the circumsla.lees ue
tailed in this court to run th1s tram
with two tank cars IN 'front.', tle pos =,
eneer coach next and the engine III
the rear
The title of the case. which Is num-
harad a3s on the docket of the Cour,
~ Anneals. is the Baltimore and ONO
Railroad. PLAINTIFF in error, VS.. Eliza a
heth White, defendant in errer; IN CT
ro- 10 the Circuit Court for the North
orr District of West Virginia. at fhli-
linn, Argument of the case on ap-
naa, was held in this city on fepru-
ar and the decision in Judge Day.
ton,s court was handed down iss
lnne Fred S. Blue is associate az
,ornev with Arthur ;. DAYTON, ioi NV
n,aintiff IN error, and Miss Whi.e Wa
renrcsented by w. Taylor GEORGE anu
A. G. jenkins.
nov She Was Injured.
| Elizabeth White, as appears On,
| statement OF facts. piousl ~
arainst the baltimore and ONO Kan
60 for INJURIES received on Decem
,,a,. < 1905. She purchased tickc
from the defendants agent at Phliilp
~, on the BerryburS branch or III
| Dad in West Virginia, and chanse'
oars a, Hackers Junction for her des
t,ration at the Baltimore and ON
| srale House in Barbour county,
va The connecting train was stahu
inc on a, siding at Hackers Junctlor
and the plaintiff took the passehse
| coach.
l soon afterwards the train moVee
The locomotive in the rear pushlh
the train with the cars, and When
had gone across a bridge, on the Wa
TO a siding. and While on curve, IN
. two tank cars and the passense
coach were thrown from the track;
rail was afterwards discovered prc
ken. The action involves the cues
tion of negligence, and the court
Appeals, without considering the var
Gus phases OF the case, reversed 1ua7 2
Dayton after considering the MAJ
point in his Instructions.