Vol. IV.] NORFOLK AND PETERSBURG RAILROAD Co. v. ORMSBY. [No. 3. looking as though he had stumbled and fallen and was struggling to get up; that when the plaintiff was first seen by the persons standing in front of the United engine-house, he was being carried around by the wheel of the flat car, which had been put in motion by the moving train, and he was not seen by any of the agents of the defendant until he had been taken from under the wheel and was being carried in the direction of his mother's house by a colored woman; that when the moving train came in contact with the stationary car there was a colored man standing on the said car engaged in throwing off lumber, and the said colored man was not in the employment of the defendants. That the neighborhood in which Mrs. Ormsby, the mother of the plaintiff, lived, on Widewater Street, was thickly settled, and there were a great many children living in the houses on both sides of Widewater Street in that neighborhood; that the plaintiff's mother had a nurse employed, whose duty it was specially to attend to the plaintiff, and his said mother never permitted him to go on the street; that since the injury was received the plaintiff has been very troublesome, has complained of pain in his breast, and has required constant attention; that after the injury was received, by which the plaintiff's right arm was mangled and nearly severed from his body, it became necessary to amputate, and that it was amputated and removed from the socket at the shoulder; that the loss of the arm is injurious to the plaintiff's health; that it leaves his right lung more or less unprotected, and creates a predisposition to sickness, such as pneumonia, pleurisy, and other pulmonary complaints; that owing to the loss of the arm, the plaintiff's right side will not develop as well as his left, and his general health will be affected; that he cannot engage in manual labor requiring the use of two hands, and in order to make a livelihood he will have to resort to some other employment. That on the 26th January, 1867, the select and common councils of the city of Norfolk adopted an ordinance in the words and figures following, to wit: "That the Norfolk and Petersburg Railroad Company be and they are hereby authorized and granted the right and privilege to enter upon and lay the track of their road in any and upon such of the streets of this city as the directors of said company may deem fit, proper, and prescribe for their use and purposes, either in the loading or unloading of cars, as well as the transit of cars, engines, and trains, on the express condition, however, that the speed of their cars, engines, or trains shall not, within the limits of the city, exceed a rate of five miles per hour." That although the defendants were permitted by the said ordinance to run their cars and engines through the streets at a rate of speed not exceeding five miles an hour, the instructions given to all the agents and employees of the road were not to exceed the rate of four miles an hour, and always to ring the bell and to give all the necessary and proper signals above mentioned in passing through the said street; and that the witnesses of the plantiff, one of whom was sixty feet, and the others about one hundred and eighty feet from the stationary car, watched the train as it moved down the said street, and did not hear the sound of the engine bell, and did not see or hear any signal by those on said train. And these are all the facts proved. Vol. IV.] NORFOLK AND PETERSBURG RAILROAD Co. v. ORMSBY. [No. 3. On the trial of the cause the defendants excepted to various opinions. and rulings of the court. The first was to the refusal of the court to give to the jury certain instructions asked, and the giving one of them with a modification. They are as follows: Instruction No. 1. If the jury believe from the evidence that the defendants were not guilty of negligence, but were exercising ordinary care in the management of their engine and cars at the time of the injury complained of in the plaintiff's declaration, they must find for the defendants. Instruction No. 2. If the jury believe from the evidence that the plaintiff, at the time the injury complained of was sustained, was only two years and ten months of age, and was permitted by his parents to go on the railroad track of the defendants on Widewater Street, without placing him under the charge of some one capable of taking care of him and protecting him from injury, then the said parents were guilty of negligence and a want of proper care for the child; and such negligence and want of proper care in thus permitting the plaintiff to be exposed to injury on the said railroad track furnishes the same answer to an action by the child for such injury, as would the negligence or other fault of an adult plaintiff; and if the jury further believe from the evidence that the injury complained of in the plaintiff's declaration would not have happened but for such negligence and want of proper care on the part of the parents, then they must find for the defendants. Instruction No. 3. If the jury believe from the evidence that the plaintiff at time of the injury complained of was so concealed either behind or under the stationary car as not to be visible to the agents of the defendants, and that the said agents of the defendants at the time of the said injury were exercising ordinary care and watchfulness, and the said engine was not running exceeding the rates of one or two miles per hour, then there was not such negligence on the part of the defendants as renders them. liable in this action, and the jury will therefore find for the defendants. Instruction No. 4. The defendants, to maintain the issue on their part, having introduced evidence tending to prove that in the forenoon of the day on which the plaintiff received the injury complained of the defendants sent a flat car loaded with lumber to a point on their railroad track on Widewater Street opposite the lumber yard of Murdock Howell, for the purpose of delivering the said lumber to the said Howell; that in the afternoon of the same day the defendants sent an engine with a train of five box cars and three flats (the box cars being all together next to the engine), from the depot down Widewater Street, for the purpose of collecting the cars on the said street and taking them out to the depot; that the engine was pushing the said train down the said track; that one of the employees of the defendants was stationed upon the top of the rearmost box car to look out for obstructions upon the track, and, if any such obstructions appeared, to notify the engineer; that two train hands of the said defendants were stationed on the rearmost flat car of the moving train for the purpose of coupling on to stationary cars along the track; that the employee of the defendants stationed as aforesaid on the top of the rearmost box car, when the moving train got within about one hundred and eighty feet of the stationary car in front of Murdock Howell's lumber yard, gave a signal to the engineer to slacken his speed for the purpose of Vol. IV.] NORFOLK AND PETERSBURG RAILROAD Co. v. ORMSBY. [No. 3. coupling with the said car, which was obeyed by the engineer, and afterwards gave another signal when the moving train had approached very near to the aforesaid stationary car, in order to notify the engineer to run still slower, which signal was also obeyed by the engineer; that the said employee so stationed on the top of the rearmost box car was constantly on the lookout for obstructions upon the railroad track; that he saw none except the stationary car aforesaid; that the train, at a distance of one hundred and eighty feet from the stationary car, was running between two and three miles per hour; that at the time the moving train struck the stationary car it was moving as slowly as it could be moved; that when the train struck the stationary car the shock or concussion was not greater than is usually the case; that the force with which the moving train came against the stationary car was so feeble as to drive the stationary car back not exceeding ten or fifteen feet; that the two employees of the defendants, whose duty it was to make a coupling with the stationary car, failed to do so because some one, while the stationary car was standing on the track in front of Howell's lumber yard, had removed the coupling-pin, and another had to be gotten from the engine before the coupling could be effected; that the bell upon the locomotive was regularly and continuously rung from the time the train left the depot until the train struck the stationary car aforesaid; that the said employee stationed on the top of the rearmost box car, although constantly on the lookout, did not see the plaintiff until after he had received the injury complained of; that the said plaintiff was so concealed at the time, either behind or under the stationary car, as to be wholly invisible to the said employee; that none of the said employees saw the plaintiff until after he had received the injury complained of; and that one of the said employees, whose duty it was to assist in coupling the train to the flat car, jumped from the train about twenty steps above the stationary car and went back to the engine for a coupling-pin; that he, too, was on the lookout for obstructions upon the railroad track, and that he did not see the plaintiff until after he had received the injury complained of; that it was the custom of the said defendants, in running their trains through Widewater Street, to have on their trains a sufficient number of hands to look out for obstructions and guard against accidents, and that on the occasion when the injury complained of was received the said defendants had the usual number of hands on the train, and used the customary precautions against accident. The court instructs the jury, that if they believe the evidence proves what it tends to prove, the defendants have not been guilty of negligence or want of ordinary care, and therefore are not liable for damages in this suit. Instruction No. 5. The court instructs the jury, that the plaintiff is not entitled to recover damages for the injury complained of, if they believe from the evidence that the plaintiff's own negligence contributed directly to the injury, although they may further believe from the evidence that the defendants did not use proper care and caution in running their cars at the time said injury was sustained. Instruction No. 6. The court instructs the jury, that as an infant is chargeable with the negligence of his parents or guardian in permitting him to be exposed to the risk of injury, and is debarred from recovering Vol. IV.] NORFOLK AND PETERSBURG RAILROAD Co. v. ORMSBY. [No. 3. damages in the same cases in which he would be precluded from recovering if he were of full age and had been himself guilty of such negligence, the plaintiff in the case is not entitled to recover damages from the injury complained of, if they believe from the evidence that his parents' negligence contributed directly to that injury, although they may further believe from the evidence that the defendants did not use proper care and caution in running their cars at the time said injury was sustained; unless they farther believe from the evidence that the defendants were aware of the said parents' negligence, and failed to use proper care and caution to avoid the injury. Instruction No. 7. If the jury believe from the evidence that the plaintiff, at the time the injury complained of was sustained, was only two years and ten months of age, and was permitted by his parents to go unattended on the railroad track of the defendants on Widewater Street, then the said parents were primâ facie guilty of negligence and a want of proper care for the child; and such negligence and want of proper care, in thus permitting the plaintiff to be exposed to injury on the said railroad track, furnishes the same answer to an action by the child for such injury as would the negligence or other fault of an adult plaintiff; and if the jury believe further from the evidence that the injury complained of in the plaintiff's declaration would not have happened but for such negligence or want of proper care, then they must find for the defendants. Instruction No. 8. The court instructs the jury the plaintiff is not entitled to recover damages for the injury complained of, if they believe from the evidence that the defendants were using ordinary care and caution in the pursuit of their lawful business at the time said injury was sustained. Instruction No. 9. If the jury believe from the evidence that the injury complained of in the declaration was occasioned by the plaintiff's throwing himself in the way of a moving train of cars belonging to the defendants, and that he was run over before the agents of the defendants having charge of the said train could prevent it, they must find for the defendants. But the court refused to give the instructions numbered 2, 3, 4, 5, 6, 7, 8, and 9, and gave the instruction number 1, with the following modification: Modification of Instruction No. 1. The terms negligence and want of ordinary care are correlative terms. If the defendants are guilty of negligence as alleged in the declaration, the plaintiff is entitled to recover; if the defendants exercised ordinary care, the plaintiff is not entitled to recover. 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. For instance, the defendants while running along their road through the country would not be required to take the same care as when passing a crossing where the highway crosses their road, they must exercise a greater degree of care; and when they enter the city and pass along the streets where many persons are passing, and where there are dwelling-houses on each side of the street, they must exercise greater care. If under all the circumstances of the case, looking Vol. IV.] NORFOLK AND PETERSBURG RAILROAD Co. v. ORMSBY. [No. 3. to all the evidence in the case, you believe the defendants exercised such care as a prudent man would have exercised under the circumstances, then the defendants are not liable. But should you believe the defendants guilty of negligence in running their cars, yet if you believe the plaintiff by his negligence contributed to the injury, the defendants are not liable. To ascertain whether the plaintiff was guilty of negligence you will apply the same rules as to the defendants; if, looking to his age and the circumstances, you think he exercised such care as was reasonably to be expected of a child of that age, then the defendants are liable, though the plaintiff by his act did contribute to the injury. If you believe that the parents of the child did not exercise ordinary care in allowing their child to be on the street without an attendant, yet the defendants are liable; this is an action brought by the child; it is his cause of action, and he is not responsible for the negligence of the parents. The second exception is as follows: The plaintiff, to maintain the said issue on his part, offered to give in evidence to the jury that on the last day of August, 1869, he had been injured by the cars of the defendants running against him on Widewater Street within the limits of the city of Norfolk; to which evidence the defendants, by their counsel, objected as improper to go to the jury, because of the variance between the said evidence and the allegations contained in the declaration. But the court being of opinion that there was no variance, overruled the objection to the said evidence, and permitted the same to go to the jury. The third exception was as follows: The plaintiff, to maintain the issue on his part, introduced a witness, Dr. James D. Galt, to prove that owing to the injury which he had received, and the loss of his arm, he was incapacitated from the pursuit of the ordinary vocations of life which required the use of two hands, and would be compelled to resort to some other means of obtaining a livelihood. To which evidence the defendants, by their counsel, objected as improper to go to the jury. But the court being of opinion that the said evidence was proper, overruled the objection, and permitted it to go to the jury. Upon the application of the defendants a supersedeas was awarded by one of the judges of this court. The case was elaborately argued in printed notes by Goode & Chaplain, for the appellant, and by Scarburgh, Duffield & Sharp, for the appellee. MONCURE, P., delivered the opinion of the court. This is a writ of error and supersedeas to a judgment of the court of the corporation of the city of Norfolk, rendered on the 28th day of May, 1872, in an action of trespass on the case, wherein Charles Ormsby, an infant, suing by James Ormsby, his next friend, was plaintiff, and the Norfolk and Petersburg Railroad Company were defendants. The injury complained of in the declaration was, that the defendants so negligently conducted their engine and cars as to strike them with great force and violence against the plaintiff, by means whereof his right arm was so fractured and injured that it became necessary to amputate the same, and it was thereupon amputated, and he was otherwise greatly wounded and in |