84 Va. 713 | Va. | 1888
delivered the opinion of the court.
It appears from the record, that after the evidence was taken before the jury, the defendant demurred to the evidence as being insufficient in law to support the action, in which demurrer the plaintiff joined. The jury, after hearing all the evidence given in the case in behalf of the plaintiff—the defendant offering none—found a verdict for the plaintiff as-follows: “We, the jury, find for the plaintiff, and assess the damages at $10,000, subject to the opinion and judgment of the court upon the demurrer to the evidence.” And thereupon the jury was discharged; and the court on the 4th day of April, 1885, “having maturely considered the matters of .law arising upon the demurrer to the evidence in the cause, is of opinion that the matters shown in evidence to the jury is not sufficient in law to maintain the issue on the part of the plaintiff. Therefore it is considered by the court that the plaintiff take nothing by her bill, but for her false clamor be in mercy, &c.; and that the defendants go thereof without' day and recover against the plaintiff their costs,” &c. The evidence shows that the plaintiff’s intestate, William Edgar Johnson, was a minor, which, from his appearance, was apparent, he being seventeen years and nine months of age, who was the stay and supjiort of his widowed mother; that he had never
The facts proved by the evidence demurred to in this case,, not only justified the jury in drawing the inference of negligence, but they afford proof conclusive of negligence and recklessness on the part of the conductor of defendant’s train, who was the agent of the company, for whose negligence the company is liable for any injury incurred by an employee, without his own fault, in the discharge of his duty under the orders of the conductor of the train. See Moon’s Adm’r v.
The court was of the opinion and instructed the jury, that in a demurrer to evidence, where the consideration of the merits of the case was withdrawn from the jury, the plaintiff was entitled, if entitled at all, to recover the full amount that a jury might lawfully give in a general verdict if there had been no demurrer to evidence; and that they ought, in its opinion, under the law, find the.full amount of the damages claimed in the declaration. The amount claimed in the declaration is not in excess of what the law allows to be recovered. The language of the instruction or opinion of the court is not mandatory, and we do not think that the instruction is against law, or was calculated to mislead the jury. The defendant made no motion to set aside the verdict, on the ground that the damages are excessive, or on any other ground; and the jury, upon the evidence, fixed the amount of recovery, subject to the opinion of the court upon demurrer, at the sum of $10,000, for the plaintiff; which we think should have been adjudged by the court. The judgment of the court complained of is erroneous, and must be reversed and annulled; and this court, proceeding to render the judgment which the circuit court ought to have rendered, will enter judgment upon the verdict, in favor of the plaintiff, who is the appellant here.
Hinton, J., dissented.
JlJD&MENT REVERSED.