88 Va. 546 | Va. | 1892
delivered the opinion of the court.
This was an action of trespass on the case, tried in the circuit- court of Prince Edward county, in which there was a verdict and judgment for the plaintiff. And, unless there shall appear to be some error in the technical exceptions hereafter to he noticed, that judgment, must be sustained.
In the record there is a certificate of evidence, but no certificate of the “facts proved,” and, consequently, under the provision of section 3484 of the Code, the case must he heard here as upon a demurrer to evidence.
And as, by demurring to the evidence, the demurrant waives or abandons all of his evidence in conflict with that of the other side, and admits all inferences that may he fairly deduced therefrom, and rests his case upon such of his evidence, if any there he, as is not in conflict with the demurrant’s evidence, and upon only such inferences from his evidence as necessarily flow therefrom, he is frequently left, as in the case at bar, with nothing to stand upon. Creekmur v. Creekmur, 75 Va. Rep.
The case presented in the record, stripped of the immaterial details, is this:
On or about the 16th day of April, 1888, an engine and render belonging to the defendant company, while running backward, collided with a train of ears to which 'they had been previously attached. The full extent of the injuries caused by this collision is not known, but they were of so severe a character as to render it necessary that both engine and tender should be sent to Petersburg for repairs; and the force of this collision probably partially caused the breaking of the coupling-pin which held the engine and tender together. Ho proper inspection seems to have been made of the engine after this collision, and none whatever was made of this coupling-pin, from the breaking of which the accident, which is the occasion of this action, plainly resulted. On the 21st of the same month the same engine, with a different tender, was sent
Upon this state of facts, for so the jury must have regarded them, they found, as they had ample room to do, a verdict for the plaintiff. It was the especial province of the jury to say Avhat occasioned the accident, and they haA-e in effect said, that it Avas due to the failure to suitably inspect, the coupling-pin after it. had been subjected to a strain which was likely to have injured it, and Avhich ought to have suggested to the company the propriety of an inspection. We do not avcII see how they could liaAm acted differently under the facts of this case. The other objections are more technical. The first of these is, that the circuit court erred in striking out the plea in abatement. It seems that there have been two suits instituted by Uunnally’s administrator to recover damages for the killing of his intestate. The first commenced by process issued on the 14th January, 1889, Avhich Avas on the docket for trial at the March term, 1889. When this suit was first called at March term, 1889, the appellant appeared and craved oyer of the writ and return in this cause, Avhen it was found that there were two writs among the papers in the case, upon each of which the sheriff had written
When the process in this second suit was issued, the appellant. appeared at rules and filed a plea in abatement alleging the pendency of the prior suit; and he. now claims that that plea abated the present, suit, and should not have been stricken out. by the court. But we are of opinion that, this objection ought not to be allowed to prevail. For, apart from the fact that appellant himself caused the present suit to be brought by claiming that the first suit had no existence until it was too late to dismiss it before the second suit, to save the statute, must have been brought, and he ought not now to be allowed to assume an inconsistent position and say that that suit was ponding at the time of the institution of this suit, we think that the general rule has no application to a case like the present.
The plea is based upon the common law maxim “ Nemo debet bis vexari, si constat quod sit -pro una. ct eadem causa,” and the object of the rule.is to prevent a party from being unnecessarily vexed with two suits when one would suffice to afford him the redress to which he is entitled. Broom’s Legal Maxims, p. 347; Olmins v. Delaney, 2 Str. 1216 ; Richards v. Stuart, 10 Bing. 322. And the modern practice is to look into each case and to determine as a matter of fact whether the second suit was unnecessary or not. State v. Dougherty, 45 Mo. 294; 8 A. and E. Encyc. Law, p. 549. In this case, as the plaintiff dismissed his first suit as soon as he safely could, and was compelled to bring the second action to avoid the bar of the statute,
The sixth instruction not only announces a doctrine faulty in itself, namely, “ that the duty of a railroad in reference to the purchasing, examination and inspection of its engines, tenders and their.couplings will be discharged when said engines, tenders and couplings have been purchased from manufacturers of undoubted standing and reputation, and been inspected in that way and manner -which is used by other railroads of good standing in the country, and which experience has demonstrated to be sufficient,” but was inapplicable to any evidence in the case. 3 Woods’ R. R. Law, 1465-1469; 100 U. S. 213; 81 Va. 71; R. R. Co. v. McKenzie, 81 Va. 81; 17 Wall. 553; 86 Va. 165; R. R. Co. v. Williams, 86 Va. 165; Wabash R. R. Co. v. McDaniels, 107 U. S. 461.
The other exceptions are not of sufficient importance to require notice. For the foregoing reasons the court is of opinion to affirm the judgment of the circuit court.
Judgment affirmed.
