so that the decree must be held to have E. EXECUTIONS ISSUE SEVER- It is proper to direct executions to issue severally to a complainant in original bill, and to a complainant in cross bill, for the sums adjudged to them respectively. Stuart v. Heiskell, 86 Va. 191, 9 S. E. 984. See the title EXECUTIONS. XII. Appeal. the appellate court can take jurisdiction. Chrislip v. Teter, 43 W. Va. 356, 27 S. E. 288. Action Where Evidence Appears on Record.-Where the chancery court takes cognizance of a suit, the object whereof is to enforce an alleged mechanic's lien, and a cross bill is filed, and all the evidence appears in the record, this court will review the action of the court below, and decree according to equity and the right of the case. Bailey Construction Co. v. Purcell, 88 Va. 300, 13 S. E. 456. XIII. Leave to Amend after When the cause is remanded to the circuit court, leave will be given to See generally, the title APPEAL | amend the original bill, and set up the AND ERROR, vol. 1, p. 418. Jurisdiction. Where the defendant filed his answer in the nature of a cross bill, and praying affirmative relief, and the court failed to take any action thereon, or to adjudicate in the matter of said affirmative relief, in the absence of such action there is nothing of which matter specifically, with any other credits to which complainant may be entitled; and leave will be given to the defendants also to amend his answer or cross bill to meet any new charges or allegations in the bill. Livey v. Winton, 30 W. Va. 554, 4 S. E. 451; Hinchman v. Ballard, 7 W. Va. 152. Cross Demand. See the title SET-OFF, RECOUPMENT AND COUNTERCLAIM. Cross Examination. See the title WITNESSES. CROSSINGS. I. Establishment and Maintenance, 123. A. Railroads Crossing Railroads, 123. 1. Steam Railroads Crossing Each Other, 123. 2. Street Railways Crossing Steam Railroads, 124. 3. Street Railways Crossing Each Other, 125. B. Railroads Crossing Streets and Highways, 125. C. Railroads Crossing Private Lands-Farm Crossings and Cattle II. Accidents at Crossings, 127. A. Mutual Rights and Duties of Railroad and Traveler, 127. 1. Steam Railroads, 127. 2. Street Railways, 128. B. Duty of Railroad Companies at Crossings, 128. 1. Care Required in Operating Trains or Cars, 128. a. Degree of Care Required, 128. (1) In General, 128. (2) Crossing Established by User, 128. (3) Duty to Licensees and Trespassers, 129. b. Duty to Keep Lookout for Travelers, 129. c. Duty to Have Train or Cars under Control, 130. d. Right to Assume Travelers Will Exercise Care to Avoid Injury, 130. e. Starting Train Standing Near Crossing, 130. f. Injury from Flying Switch, 130. 2. Special Precautions at Crossings, 130. a. Gates, 130. b. Watchman, 131. c. Duty to Give Signal by Bell or Whistle, 132. (1) In General, 132. (2) To Whom Duty Is Owed, 135. C. Contributory Negligence of Traveler, 135. 1. In General, 135. 2. Degree of Care Required of Travelers, 135. a. Steam Railroad Crossings, 136. b. Street Railway Crossings, 136. 3. Duty to Stop, Look and Listen, 137. a. Duty to Stop, 137. b. Duty to Look and Listen, 137. (1) Steam Railroad Crossings, 137. (2) Street Railway, 140. c. Excuse for Failure to Look and Listen, 140. 4. Going on Crossing with Knowledge of Danger, 140. 1. Evidence, 142. 2. Province of Court and Jury, 143. III. Obstruction of Crossing, 144. CROSS REFERENCES. See the titles CORPORATIONS, vol. 3, p. 510; DAMAGES; DEATH BY WRONGFUL ACT; DEEDS; EMINENT DOMAIN; EVIDENCE; NEGLIGENCE; RAILROADS; SPECIFIC PERFORMANCE; STREET RAILROADS; STREETS AND HIGHWAYS; TELEGRAPHS AND TELEPHONES. As to injuries to animals at crossings, see the title ANIMALS, vol. 1, p. 375. As to frightening horses, see the title ANIMALS, vol. 1, p. 378. I. Establishment and Main tenance. ture of Virginia to authorize the construction of the Alexandria and Fredericksburg Railway after giving the A. RAILROADS CROSSING RAIL- authority to construct the road, conROADS. tained a restriction and limitation of 1. Steam Railroads Crossing Each its powers in the following words: Other. Authority to Cross by Act Chartering Company.-The act of the legisla "Provided, that in the extension of the said railway, it shall in no way interfere with the chartered rights or fran chises of any railroad extending be- be no recovery. Norfolk, etc., R. Co. tween Alexandria and Washington; v. Suffolk Lumber Co., 92 Va. 413, 23 but this proviso shall not be construed S. E. 737. as preventing said Alexandria and Fredericksburg Railway from crossing any such railroad." Alexandria, etc., R. Co. v. Alexandria, etc., R. Co., 75 Va. 786. When Company Crossing Another Becomes Trespasser. If one railroad company is permitted to cross the track of another at grade on terms of a written covenant between them, the first-mentioned company can not, in 2. Street Railways Crossing Steam Right to Cross.-A street railway company has the right to cross a railroad at grade without the consent of the railroad company. Richmond, etc., R. Co. v. Richmond, etc., R. Co., 96 Va. 670, 32 S. E. 787. Maintenance of Gate as Considera tion.-See post, "Gates," II, B, 2, a. Power of Court to Prevent Change in Crossings. The board of public works had, when this case was determined, exclusive jurisdiction to deter an action on the covenant, be considered as a trespasser or wrongdoer in making such crossing; but, if there has been a breach of the covenant and resulting damages, the liability of the de-mine whether one railroad in this state fendant company is fixed by the covenant. Norfolk, etc., R. Co. v. Suffolk Lumber Co., 92 Va. 413, 23 S. E. 737. Failure to Perform Covenants.-If the defendant company has SO far failed in the performance of its covenants as not to entitle it to claim the benefits of it, it becomes a licensee or trespasser, as the case may be, and the plaintiff may bring an action on the case for any injury inflicted on it through the negligence of the defendant, and the question will then be, what constituted negligence on the part of the defendant, and what, if any, duty the plaintiff owed it. Norfolk, etc., R. Co. v. Suffolk Lumber Co., 92 Va. 413, 23 S. E. 737. For What Recovery Will Lie.Where under the terms of the contract the defendant was responsible for all injuries sustained where its acts of omission or commission, which it covenanted to perform or refrain from, were the proximate cause of the injury inflicted; but where its conduct was not the proximate, but only the remote cause or condition of the accident complained of, and where the acts of the plaintiff, or its omission or ordinary care, constituted the immediate or proximate cause of the injury, then the wrong was self inflicted, and there can should be permitted to cross another, and the terms upon which it might cross, and its adjudication on that subject was final and conclusive, and the courts had no power to interfere with its order by injunction or otherwise; but the grant simply of permission to cross does not carry with it the right to lower the elevation of the road crossed to its detriment, and where it appears that such change in the elevation was not passed on by the board of public works, and no adjudication was invited thereon by either party, courts may, on the application of the injured party, grant an injunction to stay the hand of the party threatening the injury until such time as he shall have the right to change the grade determined by the state corporation commission, which now alone has jurisdiction of the question. Southern R. Co. v. Washington, etc., R. Co., 102 Va. 483, 46 S. E. 784. From these allegations of the bill and answers, and an examination of the plans and specifications filed therewith, and the affidavits, no doubt is left that the changing of complainant's track by defendant was not passed on by the board of public works, and no adjudication was invited thereon by either party, and that the necessity or B. desirability of changing the elevation in conflict with the order made by the of the track was only suggested when state corporation commission. Newthe defendant installed the crossing port News, etc., R. Co. v. Hampton frog. If any doubt existed in this re- Roads R., etc., Co., 102 Va. 847, 47 S. spect, it would be removed by an in- E. 839. spection of the notice given by the defendant to complainant on September 30, 1901, in which specific and accurate notice is given complainant of a desire to change complainant's track from two and one-half to one inch elevation. No such intimation as to the desire of defendant to change the elevation of complainant's track is given under the notice dated the 20th of May, 1901, and under which the proceedings were had before the board of public works, and the order entered by it authorizing the crossing. Southern R. Co. v. Washington, etc., R. Co., 102 Va. 494, 46 S. E. 784. RAILROADS CROSSING STREETS AND HIGHWAYS. Right to Cross.-A railroad company may, under acts, 1874-1875, p. 47 (see Virginia Code, 1904, § 1294b), construct its road across a public highway, but it must do so with as little injury to the highway as is practically possible. It must so restore the highway that its use by the public will not be materially, or at least unnecessarily, interfered with, and so as not to render it less safe and convenient for the passage or transportation of persons or property, along the same, except so far as diminished safety and conven 3. Street Railways Crossing Each ience are inseparable from its use by Other. the railroad. The court said: "To Jurisdiction of State Corporation construe the statute literally would deCommission.-The state corporation feat the very object which the legislacommission was created for the pro- ture had in view in pasing it, for, in tection of the public by regulating pub- the very nature of things, it is imposlic utilities, and, by the express provi- sible to construct a railroad across a sion of the constitution, its findings highway without to some extent imare to be regarded as prima facie just, pairing its safety or impeding or enreasonable, and correct. In the case at dangering the passage or transportabar the order of the commission, per- tion of persons or property along the mitting one street railway company to same. The statute must, therefore, recross the tracks of another company ceive a reasonable construction, such at grade, and prescribing in detail the a one as would enable the railroad methods by which the companies are company to exercise the power conto operate their roads at such cross-ferred; but it must at the same time be ings, is fully sustained and warranted so construed as not to deprive the pubby the evidence. Newport News, etc., R. Co. v. Hampton Roads R., etc., Co., 102 Va. 847, 47 S. E. 839. lic of their rights in the highway to any greater extent than is necessarily implied from the power granted.” Charlottesville v. Southern R. Co., 97 Va. 430, 34 S. E. 98. An objection that the state corporation commission was without jurisdiction to determine a question relating Duty to Enlarge Crossing. The to a grade crossing of two street rail- duty of a railroad company, in respect ways because a part, at least, of the to a highway which it crosses, is a controversy was in litigation between continuing one. If the population of · the railway companies in one of the the neighborhood, or the use of the circuit courts of the state will not avail highway, so increases that the crosswhere it appears that the litigated ing, originally adequate, is no longer question has been finally determined so, it is the duty of the railroad comby a decree of the supreme court not pany to make such alteration in the crossing as the changed conditions require. The highway, whether under the control of a county or a city, is the property of the state, held in trust for the benefit of the public. The rights of the public have not been waived or released, nor is it in any way estopped from asserting them. Charlottesville v. Southern R. Co., 97 Va. 428, 34 S. E. 98. nington, 13 Am. & Eng. R. Cas. 529." Quoted in Clarke v. Ohio River R. Co., 39 W. Va. 732, 20 S. E. 700. When Cattle Guards Are Unnecessary. When a railroad company has put in, when building its railroad, a sufficient number of suitable farm crossings and cattle guards, it can not be required afterwards to build others at other places. Clarke v. Ohio River Duty to Repair Bridge. The duty R. Co., 39 W. Va. 732, 20 S. E. 696. of a railway company to keep a bridge| Where the company fences on both in repair arises not from any statutory | sides of its right of way, and puts in obligation, but from its duty not to interfere with the public highway. Hicks v. Chesapeake, etc., R. Co., 102 Va. 197, 45 S. E. 888. Repair of Bridge over Highway. C. RAILROADS CROSSING PRI- a farm crossing, and puts in gates to allow access to the crossing, it need not make cattle guards at the farm crossing, it being a merely private crossing, not a highway. The gates are not expected to remain open, and, when stock is crossing, it is expected to be in charge. The cases requiring such guards at crossings refer to crossings of public highways. The gate is only a means of access to the crossing, and, there being no fence there dividing fields, the mere presence of the crossing does not call for guards. Clarke v. Ohio River R. Co., 39 W. Va. 732, 20 S. E. 700. Gist of Action for Failure to Construct Guards. In an action against a railroad company to recover the penSee also, the title ANIMALS, vol. 1, alty imposed by § 1262 of the Code of p. 378. Statutory Provisions. The statute (§ 14, ch. 42, W. Va. Code, 1891), provides that where land is condemned to the use of a railroad, and is cleared and fenced, the company shall construct and ever maintain suitable farm crossings, cattle guards, and fences on both sides of the land taken. Clarke v. Ohio River R. Co., 39 W. Va. 732, 20 S. E. 700. 1904 for failure to construct cattle guards, the gist of the action is whether or not the points within the plaintiff's enclosed lands at which he requested the defendant to construct the cattle guards were necessary and proper places for them to be constructed within the meaning of the statute, and not whether that section applies to private crossings. Russell v. Louisville, etc., R. Co., 93 Va. 322, 25 S. E. 99. Cattle Guard Defined.-"A cattle guard is defined to be an appliance to Declaration in Action for Failure to prevent animals from going on land Construct Guards.-An amended declaadjoining the right of way, to prevent ration is no departure from the origitheir passing along a right of way into nal, unless it introduce into the case a an improved fenced field. 7 Am. & new, substantive cause of action difEng. Ency. Law 912; Hurd v. Railroad ferent from that declared upon, and Co., 25 Vt. 116; Railroad Co. v. Cun-, different from that which the plaintiff |