6. Public Crossing--Obstruction-Proximate Cause-Contributory
Negligence. It is error in the Court below to sustain a de-
murrer to a complaint alleging that the defendant unlawfully,
wrongfully and unnecessarily obstructed with its freight
train a public crossing, which was the proximate cause of an
injury received by the plaintiff when his horse was running
beyond his control, though the mere obstruction at the time
did not, in itself, constitute negligence, unless unnecessary
and unlawful. Duffy v. Railroad, 26.
7. Railroads-Arrest of Passenger.—It is not the duty of a rail-
road company to protect a passenger by resisting a known
officer of the law in arresting him, or to adjudge the right of
the officer in so doing, and the consequent delay of the train
is no evidence that the conductor aided in making the arrest.
Bowden v. Railroad, 28.
8. Railroads-Evidence-Counsel's Statement of Pertinency.—
When it is contended in defense to an action for negligence
that the horse hitched to a conveyance containing the plain-
tiff was standing near the railroad track, apparently under
control of the driver, but became unruly and got upon the
track too late for the observant engineer of an approaching
train to avoid the injury, which contention is disputed, it is
error for the Court below to exclude an answer to an appro-
priate question, when it is stated by the defendant's counsel
to be for the purpose of showing that the plaintiff had said
to the witness that the horse had stopped near the crossing,
though the answer would be cumulative to testimony pre-
viously given by one who had heard the conversation, the
testimony proposed to be elicited being an admission of the
plaintiff himself, and therefore naturally stronger than that
of the other witness. Baker v. Railroad, 36.
9. Imputed. The doctrine of imputed negligence does not apply
to one who is in a conveyance as a guest of another, and who
is not driving at the time or in charge of the conveyance.
Ibid.
10. Evidence-Nonsuit.-The mere killing by a railroad train of
an employee engaged in its operation raises no presumption
of negligence, and a judgment of nonsuit was proper when
the witness for plaintiff testified, without other evidence as
to negligence of the defendant, that he and plaintiff's intes-
tate brought a turn of wood to the shanty-car of the train;
that the witness remained thereon, the plaintiff's intestate
went back with the apparent intention of bringing another
turn; the train started and went forward after the usual
signals were given therefor, and that the plaintiff's intestate
was killed; as such does not establish sufficient facts from
which actionable negligence could be inferred. Jones v. Rail-
road, 79.
11. Refrigerator Cars-Undisclosed Arrangements—“Icing”—Lia-
bility-Burden of Proof.—When the defendant railroad com-
pany is not compelled to accept perishable goods for ship-
ment, but does so under an arrangement with a refrigerator
company whereby the latter company was to furnish cars for
perishable goods and do the necessary "icing," the former
company to handle such cars in the course of its business,
the railroad company is liable to the shipper for damages
caused by the neglect to do the "icing" required, the shipper
having no knowledge or notice of the contract, and holding
the bill of lading of the railroad company, the burden of proof
being upon the plaintiff to show negligence only. McConnell
Bros. v. Railroad, 87.
12. Plaintiff's Duty—Repairing Defective Machinery.—When un-
der instructions from his superior officer the plaintiff, in re-
pairing a piece of machinery, with knowledge of its defects,
negligently caused an injury to himself in such manner as it
was his duty in repairing to prevent, he cannot recover.
Mathis v. Railroad, 162.
13. Telegraph Companies — Message
Error in Transmission.-
When in the transmission of a telegram ordering the ship-
ment of four gallons of "corn," meaning corn whiskey, the
name of the sender was erroneously transmitted and damages
claimed on that account for failure to receive the whiskey,
the plaintiff must show by a preponderance of the evidence
that the sendee was deceived by the error, and for that reason
only failed to ship, and that he understood that corn whiskey
was intended. Newsome v. Telegraph Co., 178.
14. Same-Evidence.-Where a telegram had been sent ordering
whiskey, which failed to arrive, it is not sufficient evidence
to go to the jury upon liability of defendant for damages
thereby claimed, to merely show that the sendee of the mes-
sage had sold plaintiff goods on a credit before and since the
time of the sending of the message, as the failure to ship or
receive the whiskey may have been from other causes.
Ibid.
15. Evidence-Nonsuit-Burden of Proof-Demurrer.-On motion
for nonsuit upon the evidence, under the statute, the burden
of proof was upon the plaintiff to show that the injury was
caused by the negligent act of the defendant, though the evi-
dence will be construed most favorably for her; when the
evidence of the plaintiff disclosed that she had presence of
mind sufficient to avoid the injury at the apparent point of
danger, and owing to fright, not inferable from her former
conduct, again approached the track and was injured in
a manner not reasonably to be seen or anticipated by the
motorman of the street car, to whom the negligence was im-
puted, the motion should be allowed, there being insufficient
evidence that the injury was caused by defendant's negli-
gence. Crenshaw v. Street Railway Co., 314.
16. "Sudden Peril"-Proximate Cause. It is error in the Court be-
low to refuse a motion to nonsuit upon the close of the evi-
dence, under the statute, in an action against a street car
company on account of negligence imputed to the motorman,
when it appears, without material conflict of evidence, that
the motorman slowed down the car before reaching the point
of apparent danger and was otherwise not negligent; that
the plaintiff had presence of mind to escape the danger and
thereafter approached the track in a manner not reasonably
to be seen or anticipated by the motorman, and that she did
not look, when she could easily have done so and avoided
the injury to herself, and that she was struck by the car to
the rear of the motorman, and thereby injured; the cause
of the injury being the negligent and unforeseen act of the
plaintiff, upon which the doctrine of "sudden peril" can have
no application. In any view, the injury was the result of
the plaintiff's negligence, which was its proximate cause.
Ibid.
Passengers - Damages.--Compensatory damages
may be recovered of the defendant for failure of the engineer
to stop a train at a flag station when he should have stopped
upon being signalled, he having failed to see the plaintiffs'
signals by reason of negligence in not keeping a proper look-
out, and plaintiffs being ready to pay their fare and to take
the train from that station to another on defendant's road.
Williams v. Railroad, 498.
18. Same-Punitive Damages.-Defendant is liable to plaintiffs for
such punitive damages, in addition to compensatory dam-
ages, as the jury may see fit to award, upon its engineer wil-
fully refusing to stop the train at a flag station, where it
should have stopped under the circumstances. Ibid.
19. Same-Relief Accorded—Actions, Form of Suit Upon Con-
tract-Tort.-Relief should be given according to the facts
alleged and established in a civil action under Revisal, sec.
354, presenting one form of action for the enforcement of
private rights and the redress of private wrongs. It makes
no difference whether the plaintiff elects to sue upon con-
tract or in tort, forms of action having been abolished. Ibid.
20. Same-Measure of Damages. The plaintiffs' measure of dam-
ages, arising from the defendant's responsible negligence in
failing to transport them from one station on its road to
another station thereon, are those arising from personal an-
noyance, inconvenience, discomfort and physical effort inci-
dent, in this case, to plaintiffs having walked to their desti-
nation, a distance of about a mile and a half, and it was
error in the Court below to instruct the jury that plaintiffs
should have waited for the next train passing in the after-
noon in order to recover for the delay and inconvenience in
doing so, as otherwise they could not show actual damages.
Ibid.
21. Employment-Two Corporations.-In an action for damages
through defendant's negligence the plaintiff must show his
employment; and if employed by one of two corporations in
the hands of the same receiver, and he is injured while en-
gaged in working for the other under the instructions of the
receiver, evidence of such employment is sufficient to go to
the jury in an action against the corporation for whom he
was working when injured. Britt v. Railroad, 242.
22. Same-Evidence Conflicting.-When, in an action for damages
arising from alleged negligence of the defendant, it is con-
tended that plaintiff was employed by a different corporation
and not in the particular work in which the injury was
occasioned, and the evidence is conflicting, the jury should
find the facts from the evidence under proper instructions
from the Court. Ibid.
23. Defective Appliances-Evidence.-It is the duty of the em-
ployer to furnish reasonably safe appliances to be used by
the employee in the discharge of his employment; and evi-
dence that a certain one of two chains for loading logs upon
a car was defective, that plaintiff notified defendant's mana-
ger thereof and requested other chains usually used in such
work, which the manager promised to furnish, and instructed
the plaintiff to proceed with the work in which the injury
was occasioned, is sufficient to go to the jury upon the ques-
tion of negligence.
24. Fellow-servants-Other Servants' Concurring Negligence—In-
tervening Acts-Proximate Cause,-Under Revisal, sec. 2646,
the defendant railroad corporation cannot escape liability
owing to negligent act of fellow-servant, and, if it under-
takes to load logs upon its cars when it is the duty of
another corporation to do so, it assumes liability for the
negligent acts of the employee of such other corporation, not
independent and intervening acts to avoid liability, but
which, concurring with other negligent acts proximately
causing the injury, focalize into one proximate cause pro-
ducing the result. Ibid.
25. Assumption of Risk-Contributory Negligence.—The employee
assumes no risk in the proper use of defective appliances
after notifying the employer thereof, who promises to remedy
the defect; but he must use them with proper regard to
their known condition, and, failing in this, he would be guilty
of contributory negligence, which would bar his recovery.
Ibid.
26. Special Instructions-Conclusions of Law Upon Facts Found.—
It is error in the Court below to refuse to give a prayer for
special instruction, tendered in apt time and supported by
evidence bearing upon the legal effect of the facts, if found
by the jury that "plaintiff was guilty of contributory negli-
gence"; and a charge modifying the prayer to the extent
that "the jury will consider the facts as bearing upon the
issue of contributory negligence" is insufficient. Allen v.
Traction Co., 288.
27. Prohibited Age of Employment.-Under the Laws of 1903,
ch. 473, prohibiting employment of children under twelve
years of age in factories or manufacturing establishments,
it is negligence per se upon the part of the employer violat-
ing the statute. Leathers v. Tobacco Co., 330.
28. Same-Proximate Cause.-When the facts are not capable of
more than one inference, the question of proximate cause
is one of law; therefore, when the injury which was occa-
sioned to a child under twelve years of age, employed in
violation of a statute, is negligence per se on the part of the
defendant, and there is no evidence from which it can be
inferred that the child was negligent, the question of proxi-
mate cause should not be submitted to the jury. Ibid.
29. Proximate Cause-Excusable Accident. There was no error
in the Court below refusing to dismiss an action as on
judgment of nonsuit upon the ground that the proximate
cause of the injury received was the unexpected sagging
of a telephone wire of another company at a different point,
which had been left in place above defendant's system, and
by means of which defendant's opposite primary wire was
grounded, thereby causing the shock and thus rendering
the occurrence an excusable accident, when there is evidence
|