Opinion.

founded, we cannot think that it was error to permit him to testify.

The third bill of exception was because counsel for defendant in error were permitted to ask Dr. Newby whether he had ever had any patients to come under his direct charge who had received an injury by reason of a blow on the head, to which the witness answered: "Oh, yes, sir." Whereupon defendant in error, by counsel, asked the witness the following question: "What was the result in the other cases?" Thereupon plaintiff in error, by counsel, objected, but the court overruled the objection and permitted the witness to answer; but before the answer had been given counsel for defendant in error withdrew the question, saying: "It has occurred to us, your Honor, that we will not press that. We will withdraw it—his individual experience in that regard. We would rather withdraw the question than to give him any show of an appeal"; and the question was withdrawn. To the statement of counsel made before the court and jury, that they would rather withdraw the question than give the plaintiff in error any show of appeal, plaintiff in error excepted.

A case which could be prejudiced or injuriously affected by a circumstance so trivial must be of an exceedingly delicate and sensitive nature, and must rest upon an unstable and insecure foundation.

The fourth bill of exceptions is because defendant in error was allowed to ask the witness, C. C. Leake, who testified on behalf of the railway company: "What is the usual life of timber exposed as that was-the same character of timber?"

Plaintiff in error objected to this upon the ground that it did not refer to any charge contained in the declaration, and was not relevant to any issue in the case; and after the evidence was concluded, but before the case was submitted to the jury, plaintiff in error moved to strike out all the testimony of the witness, C. C. Leake, concerning the age of pier No. 3, and the

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Opinion.

life of the timber used in construction thereof, because there was no allegation in the declaration under which it could be introduced, and the same was not relevant to any issue in the

case.

We are not prepared to say that the evidence was irrelevant; but in view of the uncontradicted testimony as to the condition of the timbers in that pier, we have no hesitation in saying that its admission could have had no such prejudicial effect upon the minds of the jury as to justify the court in reversing the judgment for that cause. However opinions may differ as to the probable life of the timbers in that pier, there could be no diversity of opinion as to the fact that it was at the time of the accident and of the trial in large part utterly rotten and worthless. The wonder is that, with timbers apparently necessary to the structure in the condition in which they are shown to have been by the uncontradicted evidence in this case, the traffic of a railway company could have been moved over tracks laid upon this pier.

The assignments of error based upon the four bills of exception which we have considered are not well taken.

The fifth bill of exception is because, after the evidence had been concluded, the court instructed the jury "that in estimating the plaintiff's damages they may take into consideration his physical and mental suffering arising from his injuries received on the 18th day of October, 1906, his loss of wages from the time he was prevented by said injuries from following such calling or business as he could have followed but for said injuries, and that the amount of damages should be reasonable and just to both parties, and should compensate the plaintiff for the loss of money which he would probably earn had not the injuries occurred."

The sixth bill of exceptions is to the action of the court in refusing certain instructions asked for by plaintiff in error. It will be observed that the instruction given and those refused were designed as a guide to the jury in the estimation.

Opinion.

of damages. We are of opinion that the instruction given by the court correctly and sufficiently states the law to enable the jury to apply the evidence in determining what would be just compensation to the defendant in error for the injuries which he had sustained, provided they were received as the result of the negligence of plaintiff in error.

The railway company, after the evidence had been concluded, and the jury had been instructed, demurred to the evidence, and thereupon the jury found a verdict for $2,500, subject to the defendant's demurrer to the evidence. The railway company, through its counsel, moved the court to set aside this verdict because of errors in admitting, refusing to admit, excluding and failing to exclude evidence; because the verdict was contrary to the law and the evidence; because of misdirection and erroneous instructions given to the jury, and because the amount of damages awarded is excessive.

It appears that Hoffman fell more than thirty feet; that he was rendered unconscious; that his arm was mashed, his head was hurt, his shoulder-blade was dislocated, and his ankle badly sprained; and that he had not at the time of the trial recovered from these injuries. We think it plain that we cannot disturb the verdict as being excessive.

It only remains for us to consider whether or not the evidence was sufficient, considered as upon a demurrer, to sustain the verdict.

In obedience to the statute, the railway company stated the grounds upon which it demurred to the evidence. It embraces twenty-five specifications. To notice each of them specifically would be wearisome and unprofitable. In great part they are merely varying forms of the plea of not guilty. If there be no evidence to establish negligence upon the part of the railway company, then the judgment should have been in favor of the company, but in that inquiry we must be governed by the rule which our statute (section 3484) prescribes as to demurrers to evidence, which has been applied in cases so numerous and

Opinion.

varied as to render wholly unnecessary any effort to give it additional illustration.

It is contended that section 162 of the Virginia Constitution does not apply to this case, because Hoffman, at the time he sustained the injuries of which he complains, was not engaged in the physical construction, repair or maintenance of the company's roadway, track, or any of the structures connected therewith. The contention is that the work was one of demolition; but in this view we cannot concur. The pier was a part of the roadbed or track of the railroad. In the course of years the timber out of which it was constructed had decayed, and the pier or trestle had become unsafe. A large number of workmen were engaged in its restoration, and in the course of their duties it became necessary to remove rotten timber and to replace it with that which was sound-to demolish in order that they might rebuild. The ultimate object was the construction of a safe pier; a necessary incident was the removal or destruction of so much of it as had become unsafe. It would seem, therefore, that it was plainly within the terms of the Constitution.

But it is said that, if section 162 of the Virginia Constitution applies to the facts of this case, it contravenes the provisions of section 1 of the Fourteenth Amendment to the Constitution of the United States, which prohibits any State from denying to any person within its jurisdiction the equal protection of the laws.

It is conceded that the legislature may classify legislation. but that the classification must be upon a natural and reasonable basis.

Reliance is placed upon the opinion of the Supreme Court of the United States in the case of Gulf & S. F. Ry. Co. v. Ellis, 165 U. S. 155, 17 Sup. Ct. 255, 41 L. Ed. 666. In that case a State statute imposing an attorney's fee of $10 in addition to costs upon railway corporations omitting to pay certain claims within a certain time after presentation, applying to no other corporations or individuals, was held to be

Opinion.

unconstitutional as denying to railways the equal protection of the laws. Mr. Justice Brewer, in the course of his opinion, says, that "the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, and in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground-some difference which bears a just and proper relation to the attempted classificationand is not a mere arbitrary selection.

In the case of St. L. & San Francisco Ry. Co. v. Mathews, 165 U. S. 1, 17 Sup. Ct. 243, 41 L. Ed. 611, a Wisconsin statute making every railroad corporation liable for all property injured or destroyed by fire from its locomotives, and giving the railroad company an insurable interest in the property for its protection, was held to be constitutional and valid. "Such statute," it is said, "neither violates any contract between the State and the railroad company, nor deprives the company of its property without due process of law, nor denies it the equal protection of the law." In this case, railroad companies were legislated against as a class, and were placed upon a different footing from other persons in the community, but the classification was held to be a reasonable and proper one, and not resting upon an arbitrary distinction.

In Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107, a law of Kansas making a railroad company liable to an employee for the negligence or mismanagement of other employees or agents of the same company, was held not in conflict with the Fourteenth Amendment, and that it did not deprive the company of its property without due process of law or deny to it the equal protection of the laws. The court said, that "legislation which is special in its character is not obnoxious to the last clause of the Fourteenth Amendment, if all persons subject to it are treated alike, under similar circumstances and conditions, in respect both to the privileges conferred and the liabilities imposed."