N. & W. R. R. v. Harman's Administrator

Citations

• 83 Va. 553
• 8 S.E. 251
• 1887 Va. LEXIS 100

Syllabus

<p>1. Practice at Common Law—Negligent injuries—Declaration — De-</p> <p>murrer.—Plaintiff alleges in his complaint that defendant company, on its railroad, in the county of M, did carelessly and negligently, and with force and violence, run and drive one of its engines and divers of its cars and coaches upon and against the plaintiff’s intestate, T. H., then and there being, and then and there did so greatly wound said T. H. that by reason thereof he then and there died, and that his death was caused by said wrongful act, neglect and default of said company, &c.</p> <p>Held :</p> <p>Such declaration is sufficient on demurrer. B. & O. R. R. Co. v. Shearman’s Adm’r, 30 Gratt. 602.</p> <p>2. Idem—Argument—Reading cases to jury.—While it is the court’s province to give the jury the law, and the jury’s to deal with the facts, it is an unwarrantable restriction upon the legitimate scope of argument, if not a flagrant usurpation, for a trial court to prohibit counsel in this State, at least, from referring to and reading from recognized authorities, and especially from decisions in similar cases by courts of the last resort.</p> <p>3. Idem—Demurrer to evidence—Jury's province—Scope of argument.— After demurrer to evidence by defendant, trial court instructed the jury that they were nof to enquire whether or not the plaintiff was entitled to any damages; that the demurrer withdrew that question from the jury; that the jury could only conditionally assess the damages sustained by plaintiff, and in so doing the jury should consider the evidence only as bearing on the measure of damages ; and that defendant’s counsel would be permitted to argue before the jury upon all the evidence in mitigation, but not in bar, of damages.</p> <p>Held :</p> <p>This ruling is strictly in accord with the settled rule of practice.</p> <p>4. Appellate Court—Unreliable witness.—Where statements of a witness appear in the certificate of the evidence to be’ contradictory in certain particulars, and