Balt. & Ohio R. R. v. Whittington's adm'r
Supreme Court of Virginia
In April, 1875, Thomas M. Miller, administrator of Cornelius Whittington, deceased, instituted an action of trespass on the case in the circuit court of Frederick county against the Baltimore and Ohio Kailroacl Company to recover damages for having occasioned the death of Whittington. The declaration contained three counts.
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In April, 1875, Thomas M. Miller, administrator of Cornelius Whittington, deceased, instituted an action of trespass on the case in the circuit court of Frederick county against the Baltimore and Ohio Kailroacl Company to recover damages for having occasioned the death of Whittington. The declaration contained three counts. The first count set out, for that whereas, heretofore, vizr On the 23d of June, 1874, in said county of Frederick, the defendants wore occupying and using a certain railway for the purpose of propelling along the same locomotives and cars for the transportation of…
1Opinion of the CourtStaples, J.
The court is of opinion that the circuit court did not err in overruling the demurrers to the first and third counts of the plaintiff’s declaration. Ilu an action for damages occasioned by the negligence or misconduct of the defendant, it is not necessary for the plaintiff to allege and prove the existence of due care and caution on his part to entitle him to recover.. If the defendant relies upon contributory negligence of the plaintiff to defeat the action he must prove it, unless indeed the fact is disclosed by the evidence of the plaintiff, or may be fairly inferred from all the…
2Cases cited2 opinions
- Early v. Garland's lesseeSupreme Court of Virginia · 1855
- Millan v. KephartSupreme Court of Virginia · 1867