Haffner's Adm'r v. Chesapeake & Ohio Railway Co.

Citations

• 96 Va. 528
• 31 S.E. 899
• 1898 Va. LEXIS 127

Syllabus

<p>1. Retrial De Novo—New Evidence—Different Judgment—Same Evidence-Res Judicata.—On retrial de novo, a party may introduce new evidence and establish an entirely different state of facts from that shown on the former trial, and to conform its judgment to the changed state of facts is no violation of principle in a court even if thereby it sets aside its former decision as inapplicable, and adopts a new one suited to the new phase of the controversy. But where the evidence is substantially identical on the two trials, and the relations of the parties thereto the same, as in the-case at bar, the judgment on the first trial is conclusive.</p> <p>2. Railroads—Over-head Bridges—Negligence—Contributory Negligence.—It is negligence for a railroad company to operate its road with an overhead bridge only twenty-eight and a half inches above the tops of its cars, but if an employee knows or ought to know of the dangerous character of the bridge, and fails to use ordinary care to protect himself, in consequence of which he is injured, he is guilty of contributory negligence, and cannot recover for the injury.</p> <p>3. Railroads—Signal for Brakes—Emergency.—The mere signal to put on brakes when approaching an over-head bridge which is very low does not constitute such an emergency as to render a brakeman irresponsible for his acts.</p>