Statement-Opinion. Error to judgment of circuit court of Danville, rendered June 14th, 1880, in action of trespass on the case wherein Hatcher F. Clark, administrator of James H. Clark, deceased, was plaintiff, and the Richmond and Danville Railroad Company was defendant. Object of action was compensation for defendant's negligent killing of intestate, an employee on said road. Defendant demurred to evidence. Verdict for $7,500, subject to judgment on the demurrer, which was sustained. To this judgment plaintiff obtained a writ of error. Opinion states the facts. Flournoy & Martin, Carrington & Fitzhugh, for the plaintiff in error. H. H. Marshall, for the defendant in error. LACY, J., delivered the opinion of the court. The deceased, James H. Clark, was a brakeman upon a freight train of the defendant company. He lost his life on the 21st day of February, 1880, while in discharge of his duties as brakeman, and his administrator, the plaintiff in error, brought this suit to recover of the defendant in error damages, on the ground that his death was due to the negligence of the defendant in error. The defendant demurred to the evidence, and the court compelled the plaintiff to join therein. The jury assessed the damages of the plaintiff, if judgment should be for him, at $7,500. The court sustained the demurrer and gave judgment for the defendant thereon. Thereupon the plaintiff applied for a writ of error and supersedeas to this court, which was awarded May 18, 1882. The plaintiff's intestate's duty as brakeman on a freight train required him to be on the top of the moving train. Opinion. In his service upon the said freight train, while running from Greensboro' to Richmond, he was struck by a highway bridge which spans a cut on the said railroad line, in the suburbs of the city of Danville, and killed by the collision. In coming to Danville the train runs down grade, which begins about a mile before reaching the said highway bridge. It was impossible for a man of ordinary stature to stand erect on the freight cars, and pass with safety under said bridge, and such is the case with most of the overhead structures on the line of this road. It is insisted that the defendant company was guilty of negligence in constructing its overhead bridges so low as to require a brakeman who is doing duty to stoop in order to pass under the same with safety; and that it was negligence in the said company not to have any ascertained and established system of bridge signals to give notice of the approach to these bridges, and not to have any guards across the track to warn its employees of the approaching danger; and that in this case there was no sufficient warning given this brakeman, who was a new hand, and under twenty-one years of age, of the approach to this particular bridge, which was passed in the night time. The evidence shows that the said employee was of the usual size and stature of full grown men, being six feet high, and weighing one hundred and eighty pounds, and having the appearance of a full grown man; and the fact that he was under age was unknown to the company, or any of its agents; that the said employee had been employed by the said company some two years before without objection on the part of his father, who suffered his son to collect his own pay from the company, and pay it to him; that for some time before he sought and obtained employment as brakeman, he had been employed in the company's yard in Manchester, shifting cars, making up trains and the like. The evidence shows that at the time when his service Opinion. was engaged by the company's agent, the said employee was warned to look out for the overhead bridges, and his fellow brakemen were instructed to show him the bridges, and to warn him of the dangers attending the same. The said employee had been under this highway bridge three times, and in the day time, and was killed in going under the same in the night time, but that it was not a dark but a moonlight night; that on leaving the station west of Danville, his fellow brakeman had said to him, "now we are going down to Danville, look out for the bridge"; and the bridge in question was the only bridge in going from there down to Danville. When nearing the bridge his fellow brakeman seeing he was standing, endeavored to warn him of the danger, and shouted to him to stoop, but he remained standing as if not hearing or noticing, and was struck and killed by the bridge. The principles upon which a demurrer to evidence is to be considered have been often stated by this court. Upon the demurrer to evidence, the practice is to allow either party to demur, unless the case be clearly against the party offering the demurrer, or the court should direct what facts should be reasonably inferred from the evidence demurred to, in which case the jury is the fit tribunal to decide; to put all the evidence offered on both sides into the demurrer, and then to consider the demurrer as if the demurrant had admitted all that could reasonably be inferred by the jury from the evidence given by the other party, and waived all the evidence on his part which contradicts that offered by the other party, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily flow from it. See the opinion of Stanard, J., in Ware v. Stephenson, 10 Leigh, 155; Trout v. The Va. and Tenn. R. R. Co., 23 Gratt. 619; Tutt v. Slaughter's Adm'r, 5 Gratt. 364; Green v. Judith, 5 Rand. 1; Hansbrough's Ex'or v. Thom, 3 Leigh, 147; Stevens v. White, Opinion. 2 Wash. 203, 210; Union Steamship Company v. Nottingham, 17 Gratt. 115; Richmond and Danville R. R. Co. v. Morris, and the Same v. Anderson, 31 Gratt. 200 and 812; Richmond and Danville R. R. Co. v. Moore, ante, p. 93. The plaintiff in error assigns as error in this case that he was compelled in the circuit court to join in the demurrer. Either party, plaintiff or defendant, has a right to demur to the evidence, and the other party will be compelled to join in the demurrer unless the case be plainly against the demurrant, and his object in demurring seems to be clearly nothing else but delay. Trout v. The Va. and Tenn. R. R. Co., 23 Gratt. 619; Boyd's Adm'r v. City Savings Bank, 15 Gratt. 636; Hyers v. Green, 2 Call, 556; Rohr v. Davis, 9 Leigh, 30; Eubank's Ex'or v. Smith, 77 Va. 206. Upon the evidence in this case, it cannot be said that the evidence was plainly against the demurrant, or that the object of the demurrant was clearly nothing else but delay, and the plaintiff was properly required to join therein. When we consider this evidence in the light of the authorities cited, and the established principles which govern in the case of a demurrer to evidence, we must determine first whether the defendant was guilty of such negligence as was the immediate cause of the injury received by the deceased, and whether there was contributory negligence on the part of the deceased; whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence, or want of ordinary or common care and caution, that but for such negligence or want of ordinary care or caution on his part, the misfortune would not have happened. In the first case, the plaintiff would be entitled to recover. In the latter, not; as but for his own fault, the misfortune would not have happened. Mere negligence or want of ordinary care or caution would not, however, disentitle him to reVOL. LXXVIII-90 Opinion. cover, unless it were such that but for that negligence or want of ordinary care and caution, the misfortune could not have happened, nor if the defendant might, by exercise of care on his part, have avoided the consequence of the neglect or carelessness of the plaintiff. The negligence charged against the defendant company is, as we have seen, that the overhead bridges are constructed so low as not to allow a person to stand erect upon the top of freight cars passing thereunder; and in the second place, not sufficiently warning the deceased of the threatened danger. In the case of Devitt v. Pacific Railroad, 50 Mo. Rep. 302, questions similar to these raised by this record were considered and decided by the court. The plaintiff's son was a minor and was killed riding on the top of a freight car passing under a bridge. The accident occurred in the day time, and the deceased had been in the employ of the company about three weeks, had frequently passed under the bridge, and had been repeatedly warned to look out for this and other bridges; and when last seen, he was sitting upon the brake facing the bridge. The court in that case held that "it would be difficult to imagine a clearer case of contributory negligence, and if one guilty of it could recover, or his friends for him, if the experiment proved fatal, we must necessarily ignore the legal consequences of such negligence. . . . An employee or servant cannot recover for injuries received from the negligence of other servants when the principal is not at fault. But if the principal has been guilty of fault or negligence either in providing suitable machinery, or in the employment or selection of suitable agents or servants, and injury arise in consequence, he must respond in damages. This liability is, however, modified, when the servant himself, well knowing the default of his principal, as in providing defective or unsuitable machinery, voluntarily enters upon the employment. . . . By so doing he assumes the risk, and |