Baltimore & Ohio R. R. v. McKenzie

Citations

• 81 Va. 71
• 1885 Va. LEXIS 12

Syllabus

<p>1. Principal and Employes—Negligent injuries—Liability—Exceptions.—As a general rule, one entering the service of another takes upon himself the ordinary risks of the negligent acts of his co-employes, and principal is not liable to his employes for the fault of their co-employes. But principal and his representatives must be free from negligence.</p> <p>2. Idem—Representatives—Neg ligence—Notice.—Employe charged with duties that the law makes it incumbent on principal to perform, is regarded, pro hac vice, as the representative of principal, and his negligence is the negligence of principal, and notice to him is notice to principal.—Railway v. Ross, 112 U. S. 377; Moon v. R. & A. R. R., 78 Va. 745.</p> <p>3. Negligence—Contributory—Onus prohandi.—Plaintiff must be presumed to have been without fault; and if defendant relies on the defence of contributory negligence, he must prove it.</p> <p>4. Idem—Defendant liable.—If defendant’s negligence was the proximate cause of the injury, the plaintiff, being without fault, is entitled to recover, even though by his attempt to escape he contributed to his own injury.</p> <p>5. Idem—Mixed questions—Instructions.—What is negligence is a question of mixed law and fact, involving (1) whether the particular act has been done or omitted, and (2) whether the doing or omitting of the particular act was a breach of duty. Dunn v. R. R. Co., 78 Va. 645. Therefore, it was proper to instruct the jury that “if defendant knew, or by reasonable diligence might have known, on the evening before the collision which caused the injury, that the rock, whose fall caused the collision, was dangerous, then the defendant’s failure .to secure or to remove the rock was negligence.”</p> <p>6. Idem—Idem—Co-employes—Instructions.—Whether plaintiff and defendant are co-employes, or ratlier, whether the negligent employe was the representative of the defendant when the injury was received, is a question of mixed law and fact, to be decided by the jury