Sheeler's Adm'r v. C. & O. R. R.

Citations

• 81 Va. 188
• 1885 Va. LEXIS 22

Syllabus

<p>1. Negligent Injuries—Contributory negligence.—In order to maintain an action for an injury, it must be proved that the injury was caused by the negligence of the defendant, or his agents, and it must not appear from the evidence that want of ordinary care and prudence on the part of the plaintiff directly contributed to the injury. N. & W. R. R. Co. v. Ferguson, 79 Va. 241.</p> <p>2. Idem—Negligence—Onus probandi.—Where negligence is the gravamen of the action, the law does not impute it, but the burden of proving it rests on him who alleges it.</p> <p>3. Contributory Negligence—Case at bar.—On defendant’s railroad is a bridge with sides five feet high. The top is one foot higher than the cab floor, and 131 inches of passing engines, making it unsafe for one to be on outside of engine passing bridge. The bridge is properly built with respect to safety of persons on passing engines, and projects no nearer passing engines than other bridges on that and other roads. S. well knew this bridge, having passed over it on engines daily for months. Whilst the engine, whereof S. was on November 27, 1883, fireman, was running 18 miles an hour, he, without orders and in violation of the rules, opened the ash pan, by means whereof fire fell out and set ablazing some greased woolen ravellings on box of a driving-wheel of engine. The fire could not be extinguished without stopping the train, and it was sufficient to extinguish it at the next stopping place. But without orders, and unnecessarily, S. got down on side of engine and tender, with his right foot on step of engine and left on step of tender, clasping with right hand hand-holder on engine, and holding in his left hand a small hose attached to spigot on tender, swung his body out and forward in a stooping posture, and with left arm resting under side of engine, was attempting to extinguish the blaze, wheu he was struck by the upright side of the bridge and was killed.</p> <p>Held :</p> <p>S., and not the defendant compa