Richmond & Danville Railway Co. v. Yeamans

Citations

• 86 Va. 860
• 12 S.E. 946
• 1890 Va. LEXIS 53

Syllabus

<p>1. Common law practice—Instructions.—Instructions propounding- abstract questions of law but not predicated upon any evidence in the case, or which presuppose a condition of facts not supported by the evidence, are erroneous.</p> <p>2. Negligent Injuries—Presumptions.—In trial of action for negligent inju- , ries, negligence must be proved; and it is error to instruct the jury that plaintiff is not bound to do more by his proof than to raise “ a reasonable presumption of negligence ” on defendant’s part, to entitle him to recover.</p> <p>8. Idem—Contributor!! negligence—Rale.—It is also error in such actions to instruct the jury that, if plaintiff contributed to the injury, his right to recover is not affected thereby,unless he was in fault in so contributing to the injury, the true rule of contributory negligence being that laid down in Dun v. Seaboard & Roanoke R. R. Co., 78 Va., 645.</p> <p>4. Idem—Modification.—In such action, it is error to modify a proper instruction as to the effect of plaintiff’s contributory negligence upon his right of recovery, by inserting in the following provisory clause, “ unless the perilous position of plaintiff was known to defendant’s employees, and that by use of ordinary care, after knowledge thereof, the accident could have been avoided,” the words, “ or by use of ordinary diligence could, have been known.”</p> <p>5. Case at bar—New tried.—Where a plaintiff, acquainted with a crossing, and aware that the place was used for shifting cars, was seen by engineer of the shifter, that had just passed, to drive his one-ho-rse wagon safety across the track within a few feet of the shifter, the horse not noticing it, and to proceed some nine feet from the track, when, the engineer not observing, the horse balked and backed the wagon on to the track into collision with the shifter, which, having- coupled onto a train of cars, was backing down the track, whereby injury resulted to wagon, horse and plaintiff, held, error to refuse to se