Clark's Adm'r v. R. & D. R. R.

Citations

• 78 Va. 709
• 1884 Va. LEXIS 44

Syllabus

<p>1. Practice at Common Law-Demurrer to evidence-Rule-Either party may demur and joinder will be compelled, unless case clearly against demurrant, or court doubts what is reasonably inferable from the evidence. Demurrant admits whatever is reasonably inferable by jury from demurree’s evidence, and waives all his own which contradicts demurree’s, or the credit whereof is impeached, and all inferences from his own not necessarily flowing from it. R. and D. R. R. Co. v. Moore's Adm'r, ante, 93.</p> <p>2. Negligent Injuries-Contritodory negligence-Compensation.-Where defendant’s negligence was proximate cause of injury to plaintiff, who did not, by want of Common care himself, contribute to such injury, or where defendant, by exercise of care, could have prevented the consequences of plaintiff’s carelessness, plaintiff may recover compensation.</p> <p>3. Idem-Idem-Employer and employee-Case at bar.-C, a minor, but with his father’s approval, employed as brakeman on freight train, while doing duty on top of car by moonlight, was killed by a colliding highway bridge, not high enough for a man, erect on car-top, to pass under. When employed he was warned by company’s agent to look out for highway bridges, and his co-brakemen told to show him the dangerous ones. Under this bridge in daylight C had thrice passed. That night, leaving the station next the bridge, C was warned to look out for the bridge. On nearing bridge co-brakeman, seeing C erect on car-top, shouted to him to stoop, but C did not stoop. Action by C’s administrator, company demurred-to the evidence.</p> <p>Held :</p> <p>1. Defendant was entitled to demur and plaintiff compelled to join.</p> <p>2. Though defendant may have been culpable for lowness of bridge, yet C’s carelessness contributed to injury, and defendant is not liable.</p> <p>3. The risk of collision with such bridges was incident to the employment. C had opportunity to know their dangerous character, which must have been contemplated when he acce