Moon's Adm'r v. R. & A. R. R.

Citations

• 78 Va. 745
• 1884 Va. LEXIS 48

Syllabus

<p>1. Railroad Companies.-Negligence of agents-Onus probandi.-Whex& it is the province of the conductor to control the placing and assigning to duty of the train men, and the coupling and make up of the train, and the train is not made up in the usual and proper manner, the conductor is not a fellow-servant, but the superior of the train men, and an accident results, whereby one of said train men is injured, the burden of proving affirmatively that the accident did not result from the negligence of the company or of any agent for whose conduct it is responsible, rests on the company.</p> <p>2. Idem-Co-employees-When company not liable.-The fellow-servant or co-employee for whose negligence the company is not liable, is one employed in the same shop or place with, and having no authority over the one injured, and who is no more charged with .the discretionary exercise of powers and duties resting on the company than is the one injured.</p> <p>3. Idem-No such co-employees-When company liable.-But where the company delegates to an agent duties made encumbent on it by the law, his acts and negligences are those of the company, and such agent ‘is not a-fellow-servant with those under him, or with those in a different department of its service, and it is liable for an injury done by such agent’s acts or negligences to an employee of either of the two classes aforesaid.</p> <p>4. Practice at Common Law-Instructions.-Instructions founded on evidence in the case and consistent with the law, are proper and should be given; but otherwise, where they have no basis in the evidence. And where the acts and negligences of the defendant company’s agents is the issue, an instruction bearing on such acts and negligences, should mention “agents ” as well as “company,” to avoid danger of misleading the jury.</p> <p>.5. Idem'—Idem—Contract of employee.—An instruction which assumes that the employee “takes all risks,” is érroneous. Employee’s contract is based on implied undertaking of co