Page State, Herrington v. (Ga.)..... 17 State, Heywood v. (Ga.). 113 State, Hicks v. (Ga.) 160 State, Jackson v. (Ga.) 151 State, Johnson v. (Ga.). 620 State, Jones v. (Ga.) 368 State, Jones v. (Ga.). State, Jones v. (Ga.).. State, Langley v. (Ga.). State, Lester v. (Ga.). Southern R. Co., Brickman v. (S. C.).... 553 Page 748 187 807 167 184 122 144 ... 663 729 821 434 749 Southern R. Co., Faust v. (S. C.).. 566 Southern R. Co., Fitzgerald v. (N. C.). 391 State, Long v. (Ga.). 906 Southern R. Co. Goodin & Goodin v. (Ga.) 720 State, McGirt v. (Ga.). 171 45 State, McLeroy v. (Ga.). 125 294 586 825 Southern R. Co., Wehman v. (S. C.)..... 360 231 State, Mathews v. (Ga.). 196 192 686 692 931 145 932 Southern Ry., Carolina Division, Pickett State, Nesbit v. (Ga.). 195 v. (S. C.)... 375 State, O'Shields v. (Ga.). 120 South Georgia Grocery Co., Heile & Sons v. (Ga.) State, Parnell v. (Ga.). 804 540 State, Parris v. (Ga.). 751 Sowell v. State (Ga.). 916 State, Paschal v. (Ga.). 172 Sparks, Central of Georgia R. Co. v. (Ga.) 194 Spencer v. State (Ga.).. 144 State, Perdue v. (Ga.) State, Pollard v. (Ga.). 820 171 Spray, State v. (S. C.). Springfield v. State (Ga.). Stafford, Corker v. (Ga.). Stagg, Sands v. (Va.). 21 Stallworth v. Macon (Ga.). 142 Standard Cotton Mills v. Cheatham (Ga.).. 650 Standard Sawmill Co., De Loach Mill Mfg. Co. v. (Ga.).. 157 600 State, Potts v. (Ga.). 172 State, Pride v. (Ga.). 92 State, Pride v. (Ga.) State, Rawlins v. (Ga.). State, Robinson v. (Ga.). State, Rowland v. (Ga.). State, Ryals v. (Ga.). State, Salter v. (Ga.) 666 ... 686 688 924 189 ... 694 168 685 State v. Barrett (N. C.). 856 State, Scott v. (Ga.). 188 State v. Carrawan (N. C.). State v. Griffin (S. C.). State v. Hill (S. C.)... .1002 State, Shockley v. (Ga.). 603 State, Shuler v. (Ga.). 614 State, Slade v. (Ga.). 692 689 750 State v. Johnson (S. C.). 601 State, Smith v. (Ga.). 124 State v. Jones (S. C.). State v. Lilliston (N. C.) State v. Spray (S. C.). State v. Stedman (N. C.).. State v. Sudduth (S. Ć.). State v. Sultan (N. C.). State v. Toale (S. C.). ..1017 State, Smith v. (Ga.). 127 427 State, Smith v. (Ga.). 190 607 State, Southern R. Co. v. (Ga.). 160 764 State, Sowell v. (Ga.). 916 606 State, Spencer v. (Ga.). 144 445 State, Springfield v. (Ga.). 172 State v. Southern R. Co. (N. C.). 294 State, Sterling v. (Ga.). 921 600 State, Tanner v. (Ga.). 269 State, Thomas v. (Ga.).. .1013 State, Thomas v. (Ga.). 914 182 813 841 State, Tinker v. (Ga.). 662 608 State, Vanderford v. (Ga.) 822 615 State, Wall v. (Ga.). 815 805 State, White v. (Ga.). 812 State, Williams v. (Ga.). 188 108 180 State, Williams v. (Ga.). 166 State, Bridges v. (Ga.). State, Brown v. (Ga.). State, Brown v. (Ga.). 143 State, Williams v. (Ga.). 653 State, Williams v. (Ga.) 916 State, Williams v. (Ga.). 167 186 661 162 State, Young v. (Ga.)... 82 914 State, Zanders v. (Ga.). 195 State, Crawford v. (Ga.). .... ... .... 683 State Banking Co., Davenport v. (Ga.). . 977 666 State Corporation Commission of Virginia, 692 Button v. (Va.). 769 621 Wehman v. Southern Ry. (S. C.) 360 ... Third Nat. Bank, Western & A. R. Co. v. (Ga.) ... Thomas v. Clarkson (Ga.). Thomas v. State (Ga.). Thomas v. State (Ga.) Thomas, Darien & W. R. Co. v. (Ga.). Town of Blackshear v. Strickland (Ga.).. Trounstine, Moore v. (Ga.) 77 Western State Hospital, Sherrard v. (Va.) 1001 182 Western Union Tel. Co., Campbell v. (S. 813 C.) 571 692 Western Union Tel. Co., Carter v. (N. C.).. 274 782 Western Union Tel. Co., Gerock v. (N. C.). 782 662 Western Union Tel. Co., Johnson v. (S. Ć.) 826 Western Union Tel. Co., Kernodle v. (N. C.) 423 Western Union Tel. Co., Murray v. (S. C.).. 209 Western Union Tel. Co., Whitten v. (N. C.) 289 Western & A. R. Co. v. Third Nat. Bank 608 966 991 16 (Ga.) 621 509 Western & A. R. Co., Bell Bros. v. (Ga.). 532 810 Wheatley v. Glover (Ga.) 658 Whitacre, Ellis v. (Va.). .1018 White v. State (Ga.)... 626 Troy Oil Mill, Wardlaw v. (S. C.). 993 True, Bowen v. (S. C.). 188 Trust Co. of Georgia v. Ray (Ga.) 145 White, Gudger v. (N. C.).. 386 Trustees of American Bank of Orange v. McComb (Va.)... 14 Trustees of Hampton Normal & Argricul Whitehead v. Cape Henry Syndicate (Va.) 306 Whitten v. Western Union Tel. Co. (N. C.) 289 Wicker v. Howard (Ga.).. 821 tural Institute, Johnson v. (Va.).. 31 Wildey, Brock v. (Ga.). 195 Turner v. Southern Ry. (S. C.)... 825 Wiley, Powell v. (Ga.). 732 Turner Bros., Creel v. (Ga.).... 724 Wilkie v. Richmond Traction Co. (Va.)... 43 Turner's Adm'r, Suburban Co. v. (Va.)....... Tyner v. Barnes (N. C.)..... 29 Williams v. Jones (S. C.) 558 Williams v. Kendrick (Va.). Williams v. State (Ga.). 907 Williams v. State (Ga.). 704 Williams v. State (Ga.). Williams v. State (Ga.) 298 Williams v. State (Ga.). 822 Williams, Adams v. (Ga.) 822 Williams, Pocahontas .1008 865 108 166 167 186 661 99 Collieries Co. V. 537 (Va.) 868 Vardeman v. Penn Mut. Life Ins. Co. (Ga.) 66 Vashon v. Barrett (Va.). 705 Vassor v. Atlantic Coast Line R. Co. (N. C.) Williams, United Brothers v. (Ga.). Williams Mfg. Co. v. Warner Sugar ing Co. (Ga.).. 849 Willis, Shuler v. (Ga.). 965 Veazey v. Crawfordville (Ga.). 817 Wilson v. Wilson (S. C.).. 227 Vestner, Phelan v. (Ga.)... 697 Wilson & Wallace v. Comer (Ga.) 355 Vickers, Moore v. (Ga.). 814 Winders v. Hill (N. C.) 440 Vining, Quiggle v. (Ga.).. 74 Wingfield v. Neal (W. Va.).. 47 Virginia-Carolina Chemical Co. v. Provi- Winkler v. Killian (N. C.) 540 Winton v. McGraw (W. Va.). 506 8 W. M. Ellison & Co. v. J. T. Johnson & (S. C.).... Co. 202 Virginia Iron, Coal & Coke Co. v. Cash's Adm'r (Va.) 472 W. M. Ritter Lumber Co., Berry v. (N. Wood, Gaffney v. (S. C.) Virginia Iron, Coal & Coke Co. v. Kiser (Va.) Wooten, Hardwood Mfg. Co. v. (Ga.). Workman v. Watts (S. C.)... 814 775 889 Virginia Iron, Coal & Coke Co., Cranes Nest Coal & Coke Co. v. (Va.).. Worthy v. Battle (Ga.).. 667 884 Wright v. Southern Ry. (S. C.). 211 Virginia & S. W. R. Co. v. Hill (Va.).... 872 Wright, Central of Georgia R. Co. v. (Ga.) 64 Wright, Georgia R. & Banking Co. v. (Ga.) 52 Wright, Greene County v. (Ga.). 951 Wright-Cæsar Tobacco Co. v. A. Hoen & 815 Co. (Va.) 309 Wall, Garbutt Lumber Co. v. (Ga.). 944 Wallace v. Seaboard Air Line R. Co. (N. Wrightsville & T. R. Co., Beacham v. (Ga.) 157 Wyche, Clark Bros. v. (Ga.).. 909 C.) 399 Ward, Southern R. Co. v. (Ga.). 151 Wysong v. Seaboard Air Line Ry. (S. C.).. 214 Wardlaw v. Herrington (Ga.). Wardlaw v. Troy Oil Mill (S. C.)... 658 Yow, Sulivan v. (Ga.). 173 .... Ware, Blount Carriage & Buggy Co. v. (Ga.) THE SOUTHEASTERN REPORTER. VOLUME 54. (105 Va. 373) SOUTHERN RY. CO. v. BLANFORD'S ADM'X. (Supreme Court of Appeals of Virginia. June 14, 1906.) 1. MASTER AND SERVANT-RAILROADS-DEATH OF SERVANT-DECLARATION. In an action against a railroad company for death of an engineer, a declaration alleging defendant's liability because of the fact that a switch leading to a side track was left open by defendant's employés, and, second, because defendant was guilty of negligence in failing to provide a reasonably safe roadway for intestate while in the discharge of his duties, in that it failed to have a switch lantern on the switch that was misplaced, was not objectionable for indefiniteness of averment as to the grounds of negligence. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 829.] 2. PLEADING-DECLARATION-DEMUrrer. The fact that a declaration stated two causes of action in the same count did not render it demurrable. [Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 434, 503.] 3. EVIDENCE - JUDICIAL NOTICE - FACTS OF ORDINARY KNOWLEDGE. It is a matter of common knowledge, of which courts will take judicial notice, that the maintenance of switch lanterns at railroad sidings tends to promote the safety, not only of the employés of the railroad company, but of the traveling public. 4. MASTER AND SERVANT-DEATH OF ENGINEER NEGLIGENCE - PROXIMATE CAUSE QUESTION FOR JURY. In an action for death of a railroad engineer, evidence held to require a submission to the jury of the questions whether intestate's death proximately resulted from the negligence of defendant's employés in failing to properly set a certain switch before leaving it. and from defendant's failure to provide a switch light at such switch. [Ed. Note. For cases in point, see vol. 34. Cent. Dig. Master and Servant, §§ 1016, 1021.] 5. SAME ASSUMED RISK-STATUTES. In an action for the alleged wrongful death of a railroad engineer, an instruction that, though defendant company was guilty of negligence in not providing its switches with lights, still. if deceased knew of such failure and continued to work for a period of years, and for a period of nine months after knowing that no light was on the switch in question, without calling the company's attention thereto or making any complaint, or receiving a promise that the switch would be provided with a light, such conduct amounted to contributory negligence precluding a recovery, was properly refused as in conflict with Const. 1902, § 162, providing that knowledge of any railroad em54 S.E.-1 ployé injured on account of the defective or unsafe character or condition of any of the appliances, shall be no defense to an action for injuries caused thereby, and Code 1904, § 1294k, declaring that knowledge of any employé injured because of the defective or unsafe character of any of the appliances of such corporation shall not, of itself, bar a recovery for any injury or death caused thereby. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 574–600.j 6. SAME CONTRIBUTORY NEGLIGENCE. In an action for death of a railroad engineer caused by a misplaced switch, a requested charge containing a partial statement only of the facts tending to show contributory negligence, and charging that, if the jury found the facts stated to be true, they should find decedent guilty of contributory negligence, was erroneous, and properly refused. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1180-1194.] 7. SAME EVIDENCE ACTS OF DEFENDANT AND OTHERS. Where, in an action for death of a railroad engineer, negligence was alleged in that defendant failed to provide switch lights for the misplaced switch at which deceased was killed, evidence that switch lights were used on other portions of defendant company's railroad, and by other railroad companies operating within the state, was admissible. 8. WRIT OF ERROR-EXCEPTIONS-ESTOPPEL. Where defendant objected to the introduction of certain evidence and took an exception, but thereafter proved the same facts by its own witnesses, it was estopped to rely on such exception for reversal on a writ of error. [Ed. Note.-For cases in point. see vol. 3, Cent. Dig. Appeal and Error, §§ 3597, 3611.] 9. WITNESSES-CROSS-EXAMINATION-CREDI BILITY. Where, in an action for death of a railroad engineer because of a misplaced switch, it was claimed that the switch had been left misplaced contrary to the company's rules, by S., the brakeman on a preceding train, and S., testifying for defendant, claimed that he had properly set the switch, and that he could not possibly be mistaken, it was proper for the court to permit him to be asked on cross-examination whether or not a short time before the accident in question he had made a similar mistake in misplacing another switch. Error to Circuit Court, Brunswick County. Action by Claude M. Blanford, as administratrix of the estate of George T. Blanford, deceased, against the Southern Railway Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed. A. P. Thorn, W. L. Williams, E. R. Turnbull, Jr., and R. T. Thorp, for plaintiff in error. Buford, Palmer & Eggleston, for defendant in error. CARDWELL, J. This is a writ of error to a judgment in favor of the administratrix of George T. Blanford, deceased, against the Southern Railway Company, for the sum of $10,000 with interest from the date of the verdict of the jury, as damages for the death of Blanford, caused as alleged by the negligence of the defendant company. Blanford was a locomotive engineer on the Atlantic & Danville Division of the defendant company, and received injuries, from which he died, by reason of running into an open switch on the night of the 23d of April, 1904, within the company's yard limits at Lawrenceville, the train upon which he was employed colliding with certain freight cars which had been at an earlier hour of the night placed by other employés on a side track leading from the main line of the railroad to the Lawrenceville Manufacturing Company. The collision occurred just after the train being run by Blanford had left the station at Lawrenceville on its western trip to Danville. The declaration contains but one count, and alleges the liability of the defendant company to the plaintiff's intestate upon two grounds: First, because of the fact that the switch leading into the side track at Lawrenceville was left open by the employés of the defendant company; and, second, because the defendant company was guilty of negligence with respect to its common-law duty in failing to provide a reasonably safe roadway for the plaintiff's intestate while in the discharge of his duties as an engineman -that is to say, the company had been negligent in its failure to have a switch lantern upon the switch in its yard at Lawrenceville. The action of the court in overruling a demurrer to the declaration is assigned as error. We are of opinion that there is no merit in this assignment. The declaration is sufficiently definite to give the defendant company notice of what was claimed to be the negligence alleged against it, and fully measures up to the requirements of a declaration in such a case. The fact that it states two causes of action in the same count does not render the declaration demurrable. N. & W. Ry. Co. v. Ampey, 93 Va. 108, 25 S. E. 226; Kimball, etc., v. Borden, 95 Va. 203, 28 S. E 207. The evidence tended to prove that the switch in question was used about 7 o'clock in the evening of the day prior to the time Blanford was injured, by a freight train designated as "Second 64," and that it was not again used by any one on the business of the company until after Blanford had been hurt; that the rules of the company (as to which there was no controversy) required that after a side track had been used the switch should be "thrown" for the main line; and that after this collision it was found that the switch, which gave no indication of having been tampered with, was set and locked for the side track, which could not have been accomplished except by some person using a switch key. The evidence discloses no fact showing that a switch key was in the possession of any person but the employés of the company. It further appears, and in fact is not controverted, that the last use made of the switch in question was by the employés of the company on train second 64, and that according to the rules of the company it was the duty of one S. W. Simmons, a brakeman on train second 64, to set the switch for the main track after the use of it by his train about 7 o'clock in the evening prior to this accident, which occurred about 1:30 o'clock that night. The theory of plaintiff's case, therefore, is that the switch was displaced by the brakeman, Simmons, and that, notwithstanding this, the accident would not have happened if the defendant company had provided at the switch a lantern (known as a "target") which would have served as a warning to Blanford that the switch was not set for the main line, and would have given him an opportunity to slow up or stop the train and avoid the accident. Of the instructions given for the plaintiff, three (Nos. 1, 3, and 4) were objected to, and the overruling of the objection is assigned as error. Instruction No. 1 is based upon the idea that the defendant was negligent is not providing a switch lantern, and that the want of a switch lantern was the proximate cause of the accident; No. 3 deals with the alleged negligence of the employés of the company in so leaving the switch open as to cause the accident complained of, and told the jury that if they believed from the evidence that the switch was negligently left open by the employés of the company the plaintiff was entitled to recover; and No. 4 deals with both the alleged negligence in leaving the switch open and the failure to provide a switch light, and told the jury that if they believed from the evidence that the defendant was guilty of negligence in either not placing the switch properly or in the failure to provide a switch lantern or target, they should find for the plaintiff, unless they further believed from the evidence that the plaintiff's intestate was himself guilty of contributory negligence which concurred at the time in causing the collision in which he received his injuries. The objection urged to these instructions is that there is not sufficient evidence upon which to rest them, and that the evidence does not tend to show that the omission to provide the switch light was the proximate cause of the accident. There was evidence, as we have remarked, tending to prove that the switch could not have been left as it was at the time of this accident without the neglect of the employés |