84 Va. 553 | Va. | 1888
delivered the opinion of the court.
The first assignment of error here necessary to be considered, is the refusal of the court to give the third instruction asked for by the defendant company, which is as follows: “Bo. 3. The court instructs the jury that if they should believe from the evidence that the plaintiff is entitled to recover anything, then the measure of his .damages is fixed by the statute at not less than twenty-five, nor more than one hundred dollars.” This instruction was properly refused. Such penalty is prescribed by the seventeenth section of chapter 61, of the Code, but this is not the measure of damages in an action for injuries against such company. This is the penalty prescribed by law for failure to transport or deliver property offered for transportation. But by the fifth section of chapter 145 of the Code the measure of damages in an action for injuries is prescribed as follows: “ Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages.” Code, p. 995; Telegraph Co. v. Reynolds, 77 Va.,, 178—which disposes also of the demurrer of the defendant to the plaintiff’s declaration upon the ground that the recovery being fixed by statute, the same was recoverable by motion or action, and, if the plaintiff elected to proceed by action, such action should have been debt, and the amount of recovery fixed by the court.
The next assignment of error is as to the refusal of the court to set aside the verdict of the jury, and grant a new trial because it is not proved nor attempted to be proved that the
That a railroad company may make all reasonable rules for the conduct of its affairs is well settled. This reasonableness will be dependent upon the circumstances of the case and the rulings of the court, applying the law to the facts; and these rules must not only be reasonable, but they must be reasonably construed. A company such as this is bound to carry baggage, within the limit provided by law, and is also bound to carry all proper freights, such as the merchandise of licensed auctioneers; but it is reasonable and judicious to provide for carrying freight and heavy burdens on separate trains, equipped for the purpose, and the company cannot be required to transport merchandise or other freight, not baggage, on its passenger trains, which have not been equipped for such use; and the plaintiff having exacted such service of these trains, as a traveling merchant, if he had ceased such employment and business it was a simple and easy
JUDGMENT REVERSED.