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 Railroad 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 Railroad 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, viz: On the 23d of June, 1874, in said county of Frederick, the defendants were occupying and using a certain railway for the purpose of propelling along the same locomotives and cars for the transportations 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. In 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 cited1 opinion
- Early v. Garland's lesseeSupreme Court of Virginia · 1855
3Cited by19 opinions
- Kimball & Fink v. Friend's Adm' rSupreme Court of Virginia · 1897
- Sheff v. City of HuntingtonWest Virginia Supreme Court · 1880
- Hortenstein v. Virginia-Carolina Railway Co.Supreme Court of Virginia · 1904
- Southern Railway Co. v. Bryant's Adm'rSupreme Court of Virginia · 1897
- Berns v. Graston Gas Coal Co.West Virginia Supreme Court · 1885
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