Dun v. Seaboard & Roanoke Railroad

Citations

• 78 Va. 645
• 1884 Va. LEXIS 37

Syllabus

<p>1. Negligent Injuries—When compensated.—Compensation is not recoverable for inj'ury done plaintiff by defendant’s mere negligence, where plaintiff by his own ordinary negligence contributed to cause the inj'ury, so that but for such contribution the injury would not have happened, except when the direct cause of the injury is the defendant’s omission (after knowing the plaintiff’s negligence) to use proper care to prevent the consequences of such negligence. JR. & D. R. R. Co. v. Anderson, 31 Gratt. 812.</p> <p>2. Idem—Mixed law and fact—Mode of trial.—Whether defendant was negligent in a particular case involves: (1) “ Has a particular act been performed or omitted”? This is a question of fact. (2) “Was the performance or omission of this act a legal duty” ? This is a question of law. The first must be answered by the jury; the second by the court. Defendant’s duties depend on the facts of the case. When the facts are disputed, the question of negligence is a mixed question of law and fact. The jury must ascertain the facts, and the judge must instruct them as to the rule of law applicable to the facts as found by them.</p> <p>3. Idem—Undisputed facts—Mode of trial.—When the direct fact in issue is established by undisputed evidence, and such fact is decisive of the case, a question of law is raised, and the court should decide it. The issue of negligence comes within this rule. And so where the facts are admitted by the pleadings, the question is submitted to the court: “Is the plaintiff entitled to any recovery?”</p> <p>4. Idem—Conflict of evidence—fury trial.—A judge is not bound to submit to the jury the question of negligence, though there be conflict of evidence as to some facts relied on to prove it, if, rejecting the conflicting evidence, the alleged negligence is proved by defendant’s witnesses.</p> <p>5. Idem—Contributory negligence—Case at bar.—D, a passenger on the S & R railroad, whilst sitting with his arm protruding outside the open window of a ca