Norfolk & Western Railway Co. v. Stegall's Administratrix

57 S.E. 657, 107 Va. 231, 1907 Va. LEXIS 30

• Court: Supreme Court of Virginia
• Decided: June 20, 1907
• Status: Published

Opinion

Keith, P.,

delivered the opinion of the court.

This case was before us upon a former occasion, was reversed upon a demurrer to the declaration, remanded for further proceedings, and is reported in 105 Va. 538, 54 S. E. 19.

The declaration was amended, and upon the trial, after the evidence was introduced, the plaintiff asked for instructions, and at her instance the court, among other things, instructed the jury that “one may not, by his own negligence or want of proper care, place another in a perilous situation, and, when sued for injuries resulting therefrom, put the burden on the plaintiff of showing that he acted with reasonable care. Persons in great peril are not required to exercise the presence of mind .required of prudent men under ordinary circumstances.”

Without discussing’ other instructions or expressing any opinion upon the tendency or weight of evidence in other respects, we are of opinion that there is no evidence before us which either proves or tends to prove that defendant in error’s intestate was placed in a position of peril by any act of omission or commission on the part of the plaintiff in error. The instruction, therefore, as applied to the evidence, was misleading and erroneous.

The judgment must be reversed and the case remanded for a new trial to be had, not inconsistent with the views herein expressed.

Reversed.