foot, square foot, or value, just as the legislature might have done. The weight of authority and of the analogies of the law are decidedly that such a delegation limits the municipal authorities to the mode of assessment according to the benefits conferred by the improvements. . . . . No case can be found, it is believed, in which an assessment not according to the benefit conferred has been sustained, when the delegation of authority was to assess on the property benefited." He then adds: "The case of Norfolk v. Ellis, 26 Gratt. 224, which is seemingly opposed to this position, does not discuss this question. It merely discusses and decides the general question that an assessment by the front foot is not void, and even in that case it is said that there should be a remedy for cases of hardship by appeal to the council for abatement." In this section (148) the writer does say: "That in Pennsylvania, however, a general delegation of authority to make rules and regulations and keep streets in repair, and to collect a tax for that purpose, was considered sufficient to sustain an assessment by the front foot." Here the statute delegating the authority was considered broad enough to confer upon the city authorities the power to select the mode of assessment. It may also be said with reference to Norfolk v. Ellis, 26 Gratt. 224, that the assessment was made under a provision of the charter of Norfolk city which conferred upon the council of the city authority to raise annually, by taxes and assessments, such sums of money as they might deem necessary to defray the expenses of street improvements, and in such manner as they should deem expedient. Whether an assessment by the front foot, i. e., according 579 to the frontage on the street improved, where the charter expressly authorizes this to be done, or is broad enough to plainly confer upon the city the power to select the mode of assessment, would be a valid assessment, I express no opinion, nor as to whether an assessment upon the land or lots abutting on the street improved, for the entire costs of improvements would be valid, as a decision of these questions is not necessary in this case. The question here is, as we have seen, whether the ordinance by which the assessment is per frontage is authorized by section 33 of the charter of Alexandria, which section authorizes an assessment on the property benefited, and clearly means, I think, that the assessment is to be made in accordance with the peculiar benefits accruing to the property assessed by reason of the improvements certainly not in excess of such benefits. Upon the theory of benefits rests all of the decisions of this court and of other courts upholding assessments of this charac ter, and upon this theory alone are they looked upon with favor For the foregoing reasons, I am of opinion that the decree of the corporation court of the city of Alexandria, overruling appellants' demurrer to the bill filed in this cause, was erroneous, and should be reversed, and that this court should enter such decree as the corporation court ought to have entered, sustaining the demurrer and dismissing the bill. Reversed. The other judges concur in the opinion of Cardwell, J. ASSESSMENT FOR LOCAL IMPROVEMENTS-NOTICE.-The provisions of an act providing for a special assessment on the property benefited by a change of street grade are not unconstitutional because they do not give the owners of such property a right to be heard as to who shall be appointed assessors, or a right to appeal from such appointment: Kelly v. Minneapolis, 57 Minn. 294; 47 Am. St. Rep. 605. Proceedings for street improvement require notice and hearing to warrant the imposition of a charge by "due process of law," where the cost of such improvement is to be apportioned among those benefited: Garvin v. Daussman, 114 Ind. 429; 5 Am. St. Rep. 637. See, also, the extended note to People v. Mayor, 55 Am. Dec. 286. MUNICIPAL CORPORATIONS.-THE POWER TO TAX AND LEVY ASSESSMENTS may be delegated to municipal corporations: Note to Murphy v. Mayor. 22 Am. St. Rep. 357. MUNICIPAL CORPORATIONS.-AN ASSESSMENT for street Improvement, based upon the value of the lots fronting thereon, with 1 out regard to the frontage or depth of the lots assessed, and which necessarily causes some of them to pay a much greater sum per front foot than others, is unconstitutional and void for want of equality: Howell v. Tacoma, 3 Wash. 711; 28 Am. St. Rep. 83, and note. See, also, the extended note to People v. Mayor, 55 Am. Dec. 288. MUNICIPAL CORPORATIONS-TAXING POWER-MODE OF EXERCISING.-The power to tax or exempt from taxation is sovereign, and can be exercised by a municipality only in the manner delegated by the state: Whiting v. West Point, 88 Va. 905; 29 Am. St. Rep. 750, and note. Municipal corporations may be vested with the power of taxation, but such power can only be exercised according to charters and within the limits of the constitution of the state: Mauldin v. City Council, 42 S. C. 293; 46 Am. St. Rep. 723. RICHMOND RAILWAY & ELECTRIC Co. v. GARTHRIGHT. [92 VIRGINIA, 627.] UPON DEMURRER TO THE EVIDENCE the court must accept as true all of the plaintiff's evidence and all just inferences which can be properly drawn from it by the jury, and reject all evidence of the defendant which conflicts with that of the plaintiff and all inferences which do not necessarily result from it. NEGLIGENCE-NEW INVENTION, FAILURE TO USE.-It is incumbent upon a railway company, whose cars are propelled by steam or electricity, especially in a large and populous city, to use ordinary and reasonable care to avail itself of new inventions and improvements known to it, which will contribute to the safety of its passengers and prevent accidents to others, whenever the utility of such improvement has been tested and demonstrated; but it is not required to have in use the latest improvements which skill and ingenuity have devised to prevent accidents. NEGLIGENCE, INSTRUCTION AS TO NEW INVENTIONS. It is error to instruct the jury that if an accident might have been avoided by the use of a Sprague motor on the street-car, then the defendant was guilty of negligence in not using it, if it had not been shown by the evidence that that motor was a better and safer appliance than the one in use, nor that it had been tested, and its superiority over the other demonstrated. JURY TRIAL-NEGLIGENCE, INSTRUCTIONS, WHEN DO NOT REQUIRE A REVERSAL.-If the court can see from the whole record that even under correct instructions a different verdict. could not have been rightfully rendered, or that the exceptant could not have been prejudiced by the erroneous instruction, it will not, for such error, reverse the judgment. STREET RAILWAYS.-IF A COLLISION between a streetcar and a truck is caused by the crowded and overloaded condition of the car, the railway corporation is answerable to a person injured thereby. STREET RAILWAYS.-THE PEOPLE OF A CITY AND THEIR vehicles have the same right to pass along an intersecting street as a car has to cross it. STREET RAILWAYS.-IT IS GROSS NEGLIGENCE in a street railway corporation to overcrowd and load down its cars with passengers beyond any reasonable limit, so that it is not able to control and readily stop its cars as they approach an intersecting street. and thereby to prevent an accident. JURY TRIAL-VERDICT, EXCESSIVE.-In an action to recover for personal injuries suffered by the plaintiff, a verdict in his favor will not be set aside as excessive, unless the sum awarded is so great as to furnish ground for the belief that the jury were actuated by partiality or prejudice. Action of trespass on the case to recover for personal injuries alleged to have been suffered by the defendant in error from the negligence of the plaintiff in error and its servants. Wyndham R. Meredith, for the plaintiff in error. 628 RIELY, J. The judgment to which the writ of error was awarded in this case was recovered for injuries received in a collision between a car of the Railway and Electric Company and a hook and ladder truck of the fire department of the city of Richmond. Three grounds are assigned for the reversal of the judgment. The first is, that the plaintiff in the suit was barred of the right to recover because of his own contributory negligence. The case comes before us upon a certificate of the evidence, and, in considering it, we must apply the familiar rules applicable to a demurrer to evidence. These rules require us to accept as true all of the plaintiff's evidence and all just inferences which could be properly drawn from it by a jury, and to reject all of the evidence of the defendant which conflicts with that of the plaintiff and all inferences which do not necessarily result from it. Many witnesses were examined on both sides, and there was considerable conflict in much of the testimony. It is unnecessary to rehearse it, but sufficient to say that, testing it by the above rules, the evidence clearly establishes the negligence of the defendant company, 629 and does not justify the claim that the plaintiff was guilty of such contributory negligence that but for the same the accident would not have happened. The second assignment of error relates to the instruction given by the court, numbered 2, which is as follows: "The jury are further instructed that if they believe from the evidence that, when the horses of the truck came in sight of persons on the defendant's car, the said car was at such a distance from the point of collision that the accident might have been averted but for the want of a Sprague motor on the car, or the crowding on the platform of passengers, preventing the motorman's use of his machinery, then the defendant company was guilty of negligence, and the jury must find for the plaintiff, even though they believe that the motorman on the car did all in his power to stop his car, unless they believe that the negligence of plaintiff or tillerman contributed to the accident." The objection made to this instruction is, that it pronounces the failure of the company to equip its car with a Sprague motor to be negligence, when there was no evidence before the jury tending to show that such motor was a necessary equipment of its car, or that the want of it caused the accident in which the plaintiff was injured. The evidence upon this point was very meager. Only three witnesses, all of whom were called by the defendant, testified in regard to the matter. One of them, Mr. Hill, who had worked in the shops of the company, and was a conductor on one of its cars at the time he testified, but had never been a motorman, stated that this particular car was the only one that was provided at the time of the accident with a Westinghouse motor, and that the others were equipped with Sprague motors. When questioned as to which was the best machine for stopping a car suddenly, he answered that the Westinghouse "reverses 630 slower," and that the Sprague "takes quicker than the other," whatever that may mean. Mr. Jackson, who was the conductor on the car, was asked by which motor could a car be stopped in the shortest distance, and replied that it was as easy to stop the car with the one as the other. Major Selden, the superintendent of the company, was the only other witness as to this matter. He stated that the company, at the time he testified, was using the Westinghouse motor almost entirely on its Main-street line, and the Sprague motor on its Clay-street line. When asked which was the best motor, he stated: "I think the Westinghouse a little better"; and when asked, further, if a car could be stopped quicker with the Westinghouse motor than with the Sprague, he replied: "The difference is so slight it is hardly appreciable." The foregoing is substantially all the evidence upon which the instruction complained of was based. It thus appears that it was not testified to that the Sprague motor was a better appliance than the Westinghouse, or that at the time of the accident it had been tested and was in practical use by electric street railways, or had been adopted by them as a safer machine, or that the accident could have been averted if the car had been equipped with a Sprague motor. It was the legal duty of the defendant company to provide its cars with suitable and safe machinery. It is incumbent upon. a railway company, propelled by the powerful and dangerous agency of steam or electricity, especially in a large and populous city, to use ordinary and reasonable care to avail itself of all new inventions and improvements known to it which will contrib |