Rudd's Adm'r v. R. & D. Railroad

Citations

• 80 Va. 546
• 1885 Va. LEXIS 92

Syllabus

<p>1. PRACTICE AT LAw-Dem2ø'rer to evia'ence.-It is well settled that by de~ murrer to the evidence, the demurrant admits the truth of all demur-ree's evidence, and all proper and reasonable inferences therefrom, and waives all his own evidence which is in conflict with, or tends to make a case different from the case of demurree's evidence. 2?. & D. R. R. Co. v. Moore, 78 Va. 93.</p> <p>2. NEGLIGENT INJURIES- Contributory negligence- Compensation.-Compensation cannot be recovered for injuries done by defendant's mere negligence, where plaintiff by his own ordinary negligence contributed to cause the injury, so that but for such contribution the injury would not have happened, except when the direct cause of the injury is the defendant's omission (after becoming aware of plaintiff's negligence) to use proper care to prevent the consequences of such negligence. R. & D. R. R. Co. v. Anderson, 31 Gratt. 812.</p> <p>3. thEM- Case at ôar.-Boy of twelve, sent by parents to mind cows in field along railway, lay asleep on the track, and was run over by freight train 375 yards long, and killed. Train was running down grade without steam. Boy was lying, when struck, 226 yards from a public crossing, which was 892 yards from a curve from which boy was visible. Boy had been repeatedly found sitting and lying down and asleep on the track, and warned. When engineer saw boy on track, he made, in vain, every effort to stop train, by reversing engine, etc. On demurrer to evidence, court below decided for defendant company. On appeal:</p> <p>HELD:</p> <p>Plaintiff's evidence is insufficient to warrant the verdict.</p>