Vol. IV.] PENNYWIT v. FOOTE. [No. 3. So far as the opinion is based on broader grounds, it is overruled in Penn v. Tolleson, 26 Ark. 546, and Thompson v. Mankin, 26 Ark. 586, wherein it is held that "the governments established by the states in rebellion were never recognized by the United States as legal state governments," and that "service made during the rebellion by a Confederate court is not binding on the party to appear, and any decree or judgment thereon is a nullity.' We have been referred to the cases of White v. Cannon, 6 Wal. 443, and Pepin v. Lachmeyer, 45 N. Y. 27, in support of the power of these state courts after secession to render valid judgments. In White v. Cannon the ordinance of secession of the state was passed January 26, 1861, and the judgment was rendered January 31, 1861, between parties before the court. It was suggested by counsel that the judgment was rendered after the passage of the ordinances of secession, and therefore void. To this the court say: "That ordinance was an absolute nullity, and of itself, alone, neither affected the jurisdiction of that court nor its relation to the appellate power of this court." The mere passage of such ordinance did not abolish the court as a court of the lawful government. Pepin v. Lackmeyer related to the validity of a judgment rendered in a state court of Louisana, in New Orleans, in February, 1863, after the city had been under federal authority for nearly a year, between resident citizens. The military commander had, on taking possession of the city, in May, 1862, issued a proclamation announcing "that civil causes between party and party will be referred to the ordinary tribunals," under which the state court continued to hear and determine causes. The President's proclamation exempts from its provisions such parts of the insurgent states as became within the Union lines. Blackwell v. Willard, 65 N. C. 555, is a late case bearing upon the validity of certain judicial proceedings, during the rebellion, in a suit pending prior to the war, wherein a citizen of New York was complainant. Under an order of court, a sale of real estate had been made in November, 1860, on deferred payments. The purchase money was paid, after the war commenced, to the clerk and master of the court. The court, instead of suspending proceedings in the case, made an order at the Fall term, 1861, that the master had authority to receive payment of such deferred payments as the purchaser may desire to pay. It was held that "the relations between the plaintiffs and their counsel were terminated by war, and the steps taken afterward in the cause did not affect them. They had a good claim against the defendants before the war began; their remedy was suspended, and was revived on the return of peace.' It was further said, the order of the court after war existed, and the payment to the clerk and master of the court, are no bar to a recovery." It is said that the appearance of defendants' attorney on the final trial gave the court jurisdiction; that there was no revocation of his authority, and that the war did not work such revocation. Numerous cases may be cited to show that agencies in private affairs, relating to property of an alien enemy, within the agent's country, so far as their acts are not in violation of the non-intercourse regulations, and are for the benefit of his principal, or protection of his property, are not Vol. IV.] NORFOLK AND PETERSBURG RAILROAD Co. v. ORMSBY. [No. 3 revoked. We have been referred to none, however, showing that such agencies extend beyond the protection and care of his principal's property and interests, to the creating new obligations. The attorney in this case might well have continued his employment, for the purpose of saving the rights of his clients; but it can hardly be claimed that it was within the scope of his employment to waive his clients' right to have the action suspended, and, by his appearance, confer a power upon the court, which otherwise it did not possess, to bind them by a judgment, when war made it impossible for him to have a day in court. If, as we conclude, this court had no power over a citizen of an adhering state, pending the war, the consent of defendants' attorney, under prior employment, could not confer such power. The judgment of the superior court is affirmed. SCOTT, Chief Judge, DAY, and WRIGHT, JJ., concurred. COURT OF APPEALS OF VIRGINIA. (To appear in 27 Va.) NEGLIGENCE. INJURY TO INFANT BY RAILROAD COMPANY. NING TRAIN UPON STREET OF CITY. PROOF OF DAMAGE BY LOSS OF ARM. RUN NORFOLK AND PETERSBURG R. R. Co. v. ORMSBY. 1. The terms negligence and ordinary care are correlative terms. Ordinary care depends on the circumstances of the particular case, and is such care as a person of ordinary prudence under the circumstances would have exercised. 2. A railroad company running its cars through a populous street of a city, on which many children live, must omit nothing which can be done by the company and its agents to prevent injury to children on the street. 3. A child two years and ten months old cannot be capable of contributory negligence, so as to relieve a railroad company from liability for its own negligence. 4. Negligence of the parent or guardian of an infant child injured by a railroad car cannot constitute contributory negligence on the part of the child, so as to exonerate the company. 5. In an action for injuries involving the loss of an arm, plaintiff may introduce evidence to show what must be the effect of his injuries in disqualifying him from pursuits requiring two hands. THIS was an action of trespass on the case in the corporation court of Norfolk, brought in December, 1869, by Charles Ormsby, an infant, by his next friend, against the Norfolk and Petersburg Railroad Company. The declaration set out: For that whereas the defendants, before and at the time of the committing of the grievances hereinafter mentioned, to wit, on the 30th day of August, in the year 1869, were the owners of a certain railroad, to wit, of a railroad from the said city of Norfolk, which connects with the Southside railroad, at or near the city of Petersburg, and of a certain engine Vol. IV.] NORFOLK AND PETERSBURG RAILROAD Co. v. ORMSBY. [No. 3. and cars, then under the care and management of certain servants of the said defendants; nevertheless the said defendants, by their said servants, so carelessly, negligently, and improperly behaved and conducted themselves in and about the management, control, and direction of the said engine and cars, that the same, by and through the default, carelessness, negligence, and improper conduct of the said servants of the said defendants, then with great force and violence were driven and struck against the said plaintiff, by means whereof the right arm of the plaintiff was so fractured and injured that it became necessary to amputate the same, and the said arm was thereupon amputated, and he was otherwise greatly wounded, bruised, and injured, and so remained for a long space of time; and also by means of the premises the plaintiff was so maimed as to be disabled for the remainder of his life. To the damage of the said plaintiff of $30,000. The issue was made up on the plea of "Not guilty;" and the cause came on to be tried at the May term of the court, 1872, when the jury found a verdict in favor of the plaintiff, and assessed his damages at $8,000. The defendants thereupon moved the court to set aside the verdict and grant them a new trial, on the ground that the verdict was contrary to the law and the evidence. But the court overruled the motion, and rendered judgment according to the verdict. To this opinion of the court the defendants excepted; and the court certified the following as the facts proved upon the trial: That on the morning of the last day of August, 1869, between the hours of nine and ten o'clock, the agents of the defendants carried two flat cars loaded with lumber, from its depot in the city of Norfolk down its track on Widewater Street, in the said city, and left them in front of McCullough's lumber yard, on said street, to be unloaded, and one other flat car loaded with lumber, further down the said street, and left the same in front of Murdock Howell's lumber yard, on said street, to be unloaded; that the said flat cars remained at the places at which they were respectively left, until between four and five o'clock in the afternoon of that day, when the said agents of the defendants left the said depot with a locomotive and five box cars in front of it, loaded with freight for the Boston steamer, the purpose being to carry the said box cars down Widewater Street to Town Point, near the foot of said street, to be unloaded, and to gather up and carry back to the depot the three flat cars that had been left on said street loaded with lumber during the forenoon. When the said locomotive and box cars reached McCullough's lumber yard, the two flat cars left there in the morning having been unloaded, were coupled on the said train, the said agents with the locomotive, five box cars and two flat cars then proceeded on in the direction of Murdock Howell's lumber yard, on said street, for the purpose of coupling on to the flat car left at that point in the forenoon, to be unloaded. That on the said train, when it left the depot, there were G. W. Alsop, the engineer; a fireman, whose name was not given; J. T. Roberts, the yard master; James Pierce, switchman, and a colored train hand named Smith Vass. That the said J. T. Roberts was stationed on a brake-wheel two feet above the top of the fifth box car, being the next one to the flats, and the said Pierce and the said Vass were stationed on the foremost flat car, after they were Vol. IV.] NORFOLK AND PETERSBURG RAILROAD CO. v. ORMSBY. [No. 3. coupled on at McCullough's lumber yard. That while the train moved from the depot down Widewater Street, the bell on the engine was rung continually by the fireman, until the train reached Market Square, a point on the said track between the depot and Howell's lumber yard, and at that point the fireman left the train, by the permission of the engineer; and from that point by the engineer until the train reached the flat car at Howell's lumber yard. That when the said front of the said train reached the United engine-house, situated on said street, at a point about two hundred and twenty feet from the flat car in front of Murdock Howell's lumber yard, it was moving at a rate of speed between two and three miles. an hour. That about that point a signal was given to the engineer by the yard master, Roberts, to slacken the speed of the train in order to couple on to the flat car in front of Howell's lumber yard, which signal was heard and obeyed by the engineer. That at the time the moving train came in contact with the stationary flat car, the engine was running with steam from the boiler shut off, and was propelled solely by the steam in the dry pipe; the train was moving very slowly; the engineer on the train used all the appliances known to his business, to make the train move as slow as possible in order to couple. It is not possible to move a train slower than one mile per hour, it is very difficult to move at all at this rate; ordinarily, when using every appliance, the rate is one and one half miles per hour; that during the whole time that the said train was moving from the depot westward, to collect the flats left on the track in the forenoon, the engine bell was rung, a man was on the top of one of the box cars, and two men on the flat car at the extremity of the train, by way of lookout, to give signals to the engineer in charge of the engine; that the man on the box car blew a whistle as he deemed necessary, and that these were the precautions usual and customary when the defendants were moving a train on said street. That the said James Pierce and Smith Vass, who were stationed on the front flat car attached to the moving train, and whose business it was to couple the stationary flat car to the moving train, attempted to effect the said coupling, but failed to do so, because the coupling-pin, which was left on the stationary car in the forenoon, had by some means been removed during the day. That the said Pierce, when the moving train was within two cars off, or seventy-five or eighty feet of the stationary flat car, discovered that the coupling-pin had been removed, and jumped from the flat car on which he was standing, and ran back to the engine for the purpose of getting another. That it had been customary to leave the coupling-pins on the freight cars, which were detached and left on the track to be loaded or unloaded. That in Portsmouth the coupling-pins left with the cars were so commonly thrown away by mischievous boys, or stolen by negroes, that the train master was put to great inconvenience, and adopted the plan of attaching them permanently to the That when the train struck the stationary car and failed to make a coupling, the said stationary car was driven back on the track about one half of its length, its whole length being from twenty-seven to thirty feet; and if the attempt to couple had been successful, the said stationary flat car would have been driven back not more than three feet. That at the time of the concussion of the moving train with the stationary car, the said stationary car had been discharged of about one half of its load cars. Vol. IV.] NORFOLK AND PETERSBURG RAILROAD Co. v. ORMSBY. [No. 3. of lumber; that on the day on which the plaintiff received his injury, some time between ten o'clock, A. M. and two o'clock, P. M., one of the agents of the defendants, F. M. Ironmonger, whose business it was to superintend the railroad track on Widewater Street and attend to the moving of the trains, was passing along said street, and saw a small boy, whom he supposed to be the plaintiff, in rear of the wheel of the said stationary flat car in front of Mr. Howell's lumber yard, and in a very dangerous position, and drove him away from said car in the direction of the residence of Mrs. Ormsby, mother of the plaintiff; that Mrs. Ormsby, the mother of the plaintiff, lived in a tenement on Widewater Street, between the United engine-house and the flat car standing in front of Mr. Howell's lumber yard, being about one hundred and eighty feet distant from the engine-house, and about forty feet distant from the stationary car; that on the afternoon of the last day of August, 1869, about three and a half o'clock, she, Mrs. Ormsby, being sick at the time, having become the mother of an infant about four days before, and her husband being absent from home, directed her servant to mind her children; that the servant took them into the kitchen; that when the servant brought in the dinner, the plaintiff followed her; that she directed the servant to get a basin of water and wash the plaintiff's face; that the plaintiff, hearing her give this direction to the servant, ran to the front door, which opened on Widewater Street; that there were two lower rooms in her house, one immediately in the rear of the other, that the front room was occupied by her as a grocery and the rear room as a sitting-room, that the door opening upon Widewater Street and the door between the two rooms are immediately opposite each other; that at the time she was lying upon a lounge in the back room, which was in a position that enabled her to command a view of the front door; that while the plaintiff was standing in the front door, in full view of the mother, she directed the servant, who had brought the basin of water, to go directly and bring the plaintiff; that the plaintiff hearing this direction to the servant, ran out upon the street; that the servant went immediately after the plaintiff, going out of the back door and through a lane leading to Widewater Street; that the servant was gone not over two or three minutes, and when she returned, brought the plaintiff in her arms, with his right arm mangled and hanging by his side; that the plaintiff at the time of the injury was two years and ten months old, having been born in the month of October, 1866. At the time the plaintiff ran out the front door on Widewater Street, there were three persons standing in front of the United engine-house, and one other person standing in front of a house three or four doors between Mrs. Ormsby's residence, all being on the north side of the said railroad track; that the last named person was about sixty feet from the said stationary car, looking in the direction of the moving train at the time it came up to the stationary car; that the plaintiff was not seen by any of these persons, or by any of the defendants' agents on the moving train, until the flat car had been in put motion by the said moving train, which was moving westwardly; that then the witness standing west of the said flat car, and looking eastwardly in the direction of the moving train, saw the plaintiff lying about six feet west of and beyond the said flat car, with his arm upon the track and the rest of his body on the north side thereof, |