New York, Phila. & Norfolk R. R. v. Kellam's Adm'r

Citations

• 83 Va. 851
• 3 S.E. 703
• 1887 Va. LEXIS 131

Syllabus

<p>1. Trespass on the Case- Trespass-Distinction abolished.-Code 1873, ch. láo, $ 6, abolishes distinction between these two actions. Writ in former action ; declaration in latter ; demurrer for the variance properly overruled. Womack v. Circle, 29 Gratt. 192.</p> <p>2. Contributory Negligence-Crossing railroad tracks.-Intestate in his carriage, with top up, approached defendant’s railroad crossing, slowing his horse to a walk when near it. At that point the track was straight. At twenty-five yards from it, and up to it, he had a view of it for miles. Until his horse was on the track, he did not look out for the train. Then he attempted to hurry his horse across in front of the train. He failed, and was killed. Testimony as to whistling was conflicting.</p> <p>Held:</p> <p>Intestate was guilty of contributory negligence, and an instruction to this effect was not improper.</p> <p>3. Negligence-Rate of speed-Instructions.&emdash;An instruction that the mere speed of a train and the fact that it is “behind time” are not per se evidence of negligence-is not improper.</p> <p>4. Witnesses-Impeachment-Testimony at inquest.-Depositions of witnesses at coroner’s inquest are admissible to impeach them when introduced by defendant at trial, on their denying that they made certain declarations at the inquest.</p>