So. W. Improvement Co. v. Smith's Adm'r

Citations

• 85 Va. 306
• 7 S.E. 365
• 1888 Va. LEXIS 38

Syllabus

<p>1. Negligent Injuries&emdash;Liability&emdash;Declaratio?i.&emdash;Employer is bound to use ordinary care in selecting competent servants and suitable and safe appliances for the work to be performed, and in providing generally for the safety of his servant, having regard to the character of the work, as what would be ordinary care in one case may be gross negligence in another. Darracott v. C. &■ O. R. R. Co., 83 Va. 288. And a declaration which, fairly construed, charges that employer was bound to use such ordinary care, is sufficient.</p> <p>2. Appellate Court&emdash;Evidence certified&emdash;Motion to set aside verdict&emdash; Rule of practice.&emdash;Where motion to set aside verdict as contrary to evidence is overruled, the mover excepts and evidence is certified, this court will consider the case as if it was a demurrer to evidence by the exceptor under l 3484, Code 1887, though lower court rendered its judgment before that Code took effect, because that section took away no vested right, and merely prescribed a rule of practice.</p> <p>3. Negligent Injuries&emdash;Contributory negligence&emdash;Case at bar.&emdash;Where proximate cause of accident, whereby intestate was killed, was want of sufficient brakes and “spraggers” to “chock” the cars used by employer, though intestate, a boy under fourteen, being placed by employer’s negligence where he must adopt a perilous alternative, or where, terrified by an emergency created by employer’s negligence, intestate acted recklessly and consequently suffered;</p> <p>Held :</p> <p>Such reckless action is not contributory negligence, as persons in great peril are' not required to exercise the presence of mind required of prudent men under ordinary circumstances. This principle is peculiarly applicable to case at bar.</p> <p>4. Appellate Court&emdash;Setting verdict aside.&emdash;Where the jury and the judge below concur as to the weight and influence of the evidence, it is an abuse of appellate power in this court