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that the defendants had actual notice of such rights. The evidence fails to show a case of fraud, actual or constructive, or to show any relation of trust or contract between the parties which would bring this case within that class of cases where courts of equity in one state will compel parties within their jurisdiction to make conveyances of lands within a foreign jurisdiction, in order to do justice between the parties.
The complainants, except Elizabeth Janney and Crocket Mitchell, are entitled to have partition made of so much of the said one hundred and twenty acre tract of land as lies in this state, but as to that portion of the land which lies in the state of West Virginia their bill must be dismissed for want of jurisdiction, but without prejudice to their rights.
We are of opinion that the decree appealed from must be reversed, and the cause remanded to the circuit court of Tazewell county, to be there proceeded in, in accordance with the views expressed in this opinion.
Decree in case No. 1 reversed; decree in case No. 2 affirmed.
WITNESSES.-OBJECTIONS TO COMPETENCY of a witness on account of interest must be taken at the time of testifying, if the fact of interest was known, as if, by evidence afterward offered in the case, the interest of the witness should be apparent, the court should be asked to rule the evidence out: Inglebright v. Hammond, 19 Ohio, 337; 53 Am. Dec. 430. To the same effect, see Town v. Needham, 3 Paige, 545; 24 Am. Dec. 246. The testimony of a witness should be excepted to, as a general rule, as soon as a party is made aware of the witness' incompetency: Andre v. Bodman, 13 Md, 241; 71 Am. Dec. 628.
PARTITION - ADVERSE POSSESSION AS A DEFENSE.Lands adversely held may be partitioned by a court of equity if the complainant has an immediate right of entry: Gore v. Dickinson, 98 Ala. 303; 39 Am. St. Rep. 67, and note. See, also, the note to Peden v. Cavins, 39 Am. St. Rep. 283, and the extended note to Nichols v. Nichols, 67 Am. Dec. 704, 707.
COTENANCY-ADVERSE POSSESSION.-The possession of one cotenant is the possession of all until he does some act of ouster to notify the others that his possession is exclusive: Cocks v. Simons, 55 Ark. 104; 29 Am. St. Rep. 28, and note. Possession of one cotenant is the possession of all, and each bas the present right to enter upon the whole land, and upon every part of it, and occupy and enjoy the whole: Metcalfe v. Miller, 96 Mich. 459; 35 Am. St. Rep. 617, and note.
COTENANCY-PURCHASE OF OUTSTANDING TITLE.-A cotenant, by the purchase of an outstanding title, acquires only the right to compel contribution to the expenses thereof, if he and his fellow-tenants hold joint possession or otherwise occupy relations presumed to be of trust and confidence: Stevens v. Reynolds, 143 Md. 467; 52 Am. St. Rep. 422, and note.
COTENANCY-WHAT CONSTITUTES ADVERSE POSSESSION BETWEEN COTENANTS.-To constitute an adverse possession between cotenants, there must be an actual ouster, and an exclusion of the other cotenants by the one in possession; Mansfield v. McGin. ness, 86 Me. 118; 41 Am. St. Rep. 532, and note. A cotenant who, under color of title, enters into possession of the land held in common, claiming the whole to himself, thereby acquires an adverse possession, and sets the statute of limitations in motion: King v. Carmichael, 136 Ind. 20; 43 Am. St. Rep. 303, and note.
JURY TRIAL.-The provision that trial by jury, “as heretofore used, shall remain inviolate,” in the Georgia constitution, applies to that right as it existed in 1798, and does not require a jury trial in all cases: Flint River Steamboat Co. v. Foster, 5 Ga. 194; 48 Am. Dec. 248. See on this subject the extended notes to Flint River Steamboat Co. v. Roberts, 48 Am, Dec. 185, and Inhabitants v. Wentworth, 58 Am. Dec. 791.
JAMMISON v. CHESAPEAKE & OHIO Railway Co.
(92 VIRGINIA, 327.) PROXIMATE CAUSE, WHAT IS NOT.-The fallure of a railway corporation to stop its train at the station to which it sold one of its passengers a ticket is not the proximate cause of an injury subsequently received by him from going out of the car in which he was riding in search of a conductor, and, while standing on the plat. form, being thrown therefrom by the jerking motion of the train in passing around a curve. Had he remained in his seat, he would have received no other injury than the inconvenience resulting from his being carried beyond his station and the expense of returning thereto.
RAILWAY CORPORATIONS.-PASSENGERS cannot cover if they voluntarily assume a position of peril from which injury results to them.
EVIDENCE.-DECLARATIONS OF AGENTS are not admissible against their principal as part of the res gestae, when made after the occurrence of an accident to which they relate. Nor can they be regarded as his admissions, unless the agent was authorized by the principal to make them.
Action by Elizabeth Jammison, an infant, by her next friend to recover for injuries claimed to have been received from the wrongful and negligent act of the defendant.
Henley & Hubbard and B. D. Peachy, for the plaintiff in error.
Henry T. Wickham, William J. Robertson, A. S. Segar, and Henry Taylor, Jr., for the defendant in error.
328 KEITH, P. On the first day of December, 1890, the appellant purchased a ticket over the Chesapeake and Ohio railway from Newport News to Ewell's station. The train passed Ewell's station without stopping so as to enable the appellent to get off. It slowed up, however, to enable a witness for the appellant, one E. M. Canady, to alight safely, though not without some risk of injury. When it became evident that the train would not stop at Ewell's station, appellant, after conferring with a fellow-passenger, passed out of the front end of the coach in which she was sitting, seeking the conductor of the train, for the purpose of inducing him to halt, in order that she might get off. The proof is, that when the train passed Ewell's station it had slowed down to a speed of about eight miles an hour, that upon passing the station it began gradually to accelerate its movement, and as the plaintiff in error passed out of the door at the front of the car, with a large bundle under one arm and a small package under the other, and had reached the platform, the train being at that time in the act of passing around a curve, its speed was suddenly accelerated to such a degree as to cause a jerking motion, whereby the appellant was thrown from the car and injured. For this injury she sued by her next friend, and the jury having found a verdict in her favor for three thousand dollars, subject to the defendant's demurrer to the evidence, the court entered a judgment sustaining the demurrer and dismissing the plaintiff's suit, and to that judgment a writ of error was awarded by one of the judges of this court.
329 Without doubt, the defendant in error was guilty of neg. ligence in failing to stop the train at Ewell's station. For what- . ever loss or inconvenience plaintiff may have sustained by reason of this neglect upon the part of the defendant in error, she had an ample remedy, and would have been entitled to full compensation in damages. The injury, however, for which she sues is not the loss or inconvenience consequent upon that act, but for the damage she suffered by falling from the train, and the injuries she then sustained. The failure of the defendant in error to stop its train at Ewell's station was not the proximate cause of the injury for which the suit was brought, but, on the contrary, her injury was directly attributable to causes wholly independent of that act of negligence. Had she retained her seat she would have been safe, and, leaving the train at the next station, could have maintained an action for whatever loss or injury had been inflicted upon her. Instead of so doing, upon the advice of a fellow-passenger, she, after encumbering herself with bundles under each arm, passed out upon the platform, knowing, as she must or ought to have known, that the speed of the train was being accelerated; that the platform was in a position of danger, and there, "by a jerk,” incident to the increase of specd from the slow rate at which the train had been moving when it passed the station, she was thrown from the platform, and injured.
Not only did her negligent conduct so far contribute to the accident as to preclude a recovery on her part, even though the evidence disclosed negligence upon the part of the company, but I am at a loss to discover in the record of this case any evidence whatever of negligence upon the part of the company, save and except its failure to halt its train at Ewell's station, but that act, as we have seen, was the remote and not the proximate caus? of the injury, and cannot be taken into consideration as constituting an element of decision in this case.
330 Railroad corporations owe a high degree of duty to their passengers. They must do all for their safety that human skill and foresight may suggest, and are responsible for any, even the slightest, neglect; but that the passenger may hold the company to this high degree of responsibility, it is incumbent upon him to occupy the position upon the train assigned to passengers, and if he voluntarily assumes a position of peril, and injury results from it, he cannot recover.
In this case the plaintiff in error voluntarily placed herself in a position of peril, without justification or excuse, when, encumbered with bundles which incapacitated her for self-protection, she walked out upon the platform of a moving train.
The principles relied upon in this opinion have been so fully and so frequently enforced by the decisions of this court that they may be considered as established law: See Farish v. Riegle, 11 Gratt. 697; 62 Am. Dec. 666; Richmond etc. R. R. Co. v. Morris, 31 Gratt. 200; Richmond etc. R. R. Co. v. Anderson, 31 Gratt. 812; 31 Am. Rep. 750; Dun v. Seaboard etc. R. R. Co., 78 Va. 645; 49 Am. Rep. 388.
A bill of exceptions was taken during the trial to the ruling of the circuit court upon the admissibility of evidence. A question was asked of H. D. Cole, the object of which was to elicit from him proof of the declarations of Captain Berkeley, conductor upon the train when the accident occured, upon the ground that the declaration, having been made shortly after the accident, constituted a part of the res gestae. It was, of course, not pretended that it is admissible as an admission upon the part of the conductor. He is not an agent of the company for any such purpose, nor do we think it admissible as part of the res gestae. Mr. Cole, being asked by counsel for plaintiff in error whether he saw anything of the conductor or brakeman at or about the time of the accident, replied that there was no officer of the train in 331 the coach at all; that the station was not called out, but that, shortly after the accident occurred, the porter for the chair-car, in the rear of the ladies' car, came through the coach in which he was sitting; that the witness said to the porter that a passenger had fallen or jumped off, to which the porter made some reply, which is not given; that the porter then went forward, and came back presently, the witness thought, with Captain Berkeley, but of that he was not certain; at any rate, soon after the porter came back, Captain Berkeley came into the coach, and witness said something to him about a passenger having jumped or fallen off the train, and witness was asked to give the conductor's reply. To this question counsel for defendant in error objected, and the court sustained the objection.
After the cross-examination was over, counsel for plaintiff, upon the renewed examination of Mr. Cole, returned to this subject, and, in answer to a question, the witness said: "I don't know where Captain Berkeley was when the accident happened. I saw Captain Berkeley directly afterward; I know where he was then, because he came through the coach.” And thereupon counsel for the plaintiff in error asked this question: "I want to know if you afterward ascertained from him, by a conversation, where he was when the accident happened?" Defendant objected to the question, objection sustained, and the plaintiff excepted.
It seems from every point of view that the ruling of the court was correct. It was not admissible as an admission, because Captain Berkeley was not the agent of the defendant in error in the sense that he could bind it by his admission. It was not a part of the res gestae, because not sufficiently connected with it in point of time and circumstance, and its exclusion is in no event reversible error, because the declarations sought to be offered in evidence are not given, so that the court may be enabled to judge of their relevancy and 332 value: See Gray v. Commonwealth, 92 Va. 772, and authorities there cited.
Upon the whole case, we are of opinion that there is no error in the judgment, and the same must be affirmed.
CARRIERS.-A PASSENGER TAKES ON HIMSELF RISK OF THE MODE OF TRAVEL HE ADOPTS: Galena etc. R.R. Co. v. Fay, 16 III. 558; 63 Am. Dec, 323, and note. The liability of passengers for taking positions of danger is discussed in the notes to the following cases: Nolan v. Brooklyn etc. R. R. Co., 41 Am. Ren. 347: Peninsular R. R. Co. v. Gary, 1 Am. St. Rep. 200; Ingalls v. Bills. 43 Am. Dec. 364; Cartwright v. Chicago etc. Ry. Co., 50 Am. Rep. 277.
RAILROADS - NEGLIGENCE OF PASSENGER JUMPING FROM TRAIN.--A passenger who jumps from a running train to Avoid being carried beyond his place of destination cannot recover for injuries thereby suffererl: Pennsylvania R. R. Co. v. Aspell, 23 Pa. St. 147; 62 Am. Dec. 323. To attempt to get off while railroad cars are in motion is an act of negligence: Detroit etc. R. R. Co. v. Curtis, 23 Wis. 152; 99 Am. Dec. 141; Bardwell v. Mobile etc. R. R. Co., 63 Miss, 574; 56 Am. Rep. 812.
AGENCY-DECLARATIONS OF AGENT AS TO PAST TRANS. ACTIONS.—The declaration of an agent, to the effect that his principal had been negligent with respect to a past transaction, is not ad.