given no intimation of an intention to' cross the track until the car was so close to him that it could not be stopped in time to avert the accident, the defendant company was entitled to an instruction asked telling the jury that it is the duty of a person approaching a street car track to exercise the care which ordinarily prudent persons would exercise, and to make such use of his faculties as ordinarily prudent persons would make use of under similar circumstances, and if such person is deaf, it is more incumbent on him to exercise his sight; and if they believe from the evidence that the deceased failed to exercise such care, and his failure to do so contributed to the accident in which he met his death, they must find for the defendant. In the case at bar, the addendum made by the court was, under the evidence, erroneous. Portsmouth R. Co. V. Peed, 102 Va. 663, 47 S. E. 850. Person Subject to Epilepsy.-Plaintiff's intestate, subject to epileptic fits, attempted to cross railway at a point beyond a street crossing, where there was a ditch four feet deep, and where crossing was forbidden. In so doing he was seized with a fit and fell on the track, and was killed by a freight train, backing slowly, with bell ringing. It was held, deceased was guilty of contributory negligence, and also a trespasser; and verdict for his administrator should be set aside. Tyler v. Kelley, 89 Va. 282, 15 S. E. 509. Blind in One Eye. The fact that a person is blind in her right eye, does not relieve her from the duty of ordinary care in crossing or about to cross a railroad track, at a point where it intersects with a street or highway, but imposes upon her the duty of greater precaution to avoid injury. Marks v. Petersburg R. Co., 88 Va. 8, 13 S. E. 299. Plaintiff's horse had calmly approached defendant's train as it passed very close to him, and after it passed having safely cleared the track, homeward bound, became frightened at the steam from the engine on its return, and backed the wagon against the train, whereby plaintiff was injured. It was held, defendant not liable, as it could not foresee such unusual conduct on the part of the horse. Richmond, etc., R. Co. v. Yeamans, 86 Va. 861, 12 S. E. 946; Richmond, etc., R. Co. v. Yeamans, 90 Va. 752, 19 S. E. 787. Where a plaintiff, acquainted with a crossing, and aware that the place was used for shifting cars, was seen by engineer of the shifter, that had just passed, to drive his one-horse wagon safely across the track within a few feet of the shifter, the horse not noticing it, and to proceed some nine feet from the track, when, the engineer not observing, the horse balked and backed the wagon on to the track into collision with the shifter, which, having coupled on to a train of cars, was backing down the track, whereby injury resulted to wagon, horse and plaintiff, it was held, error to refuse to set aside the verdict for the plaintiff as not warranted by the evidence. Richmond, etc., R. Co. v. Yeamans, 86 Va. 860, 12 S. E. 946. D. ACTIONS FOR INJURIES AT CROSSINGS. 1. Evidence. Burden of Proof.-The burden of showing that the deceased was not in the exercise of ordinary care and caution in approaching the crossing was upon the defendants, unless it was disclosed by the plaintiff's evidence, or can be fairly inferred from all the circumstances of the case. Kimball v. Friend, 95 Va. 138, 27 S. E. 901. In an action against a railroad company to recover damages resulting 6. Injury Caused by Backing of Trav- from negligently failing to give timely eler's Horse. warning of the approach of one of its See generally, the title ANIMALS, | trains to a public crossing, the burden vol. 1, p. 378. is on the plaintiff to prove such neg introduce any evidence tending to ligence. Southern R. Co. v. Bryant, 95 or blowing the whistle, or giving any Va. 212, 28 S. E. 183. warning whatever," is a general alPresumptions of Negligence.-Driv-legation, under which the plaintiff may ing upon a railroad track at a public crossing at a slow gait, without stopping, is not evidence per se that the traveler did not listen for approaching trains. The negligence of the railroad company being established, in the absence of evidence to the contrary, the presumption, though slight, is that the traveler did his duty in approaching the track. Southern R. Co. v. Bryant, 95 Va. 213, 28 S. E. 183; Kimball v. Friend, 95 Va. 138, 27 S. E. 901. Where a traveler is killed at a railroad crossing, and the negligence of the railroad company is established, in the absence of evidence to the contrary, the presumption is, though perhaps slight, that the traveler did his duty in approaching the crossing. Southern R. Co. v. Bryant, 95 Va. 212, 28 S. E. 183. Proximate Cause of Injury.—In an action of trespass against a railroad company for injuries received at a railroad crossing by reason of the failure of the defendant to give the signal required by statute, in order that the plaintiff should recover, he must not only prove that the defendant failed to give the signal required by statute, but that such failure was the proximate cause of his injury. Butcher v. West Virginia, etc., R. Co., 37 W. Va. 180, 16 S. E. 457. Conflict of Evidence.-The testimony of a witness who denies that a railroad whistle was sounded on a given occasion is as positive evidence as the testimony of another who affirms the fact, where each has equal opportunity of hearing, and the attention of the former, because of special circumstances, is equally drawn with that of the latter to the sounding of the whistle. The denial of the one and the affirmance of the other produces a conflict of evidence which it is the province of a jury to determine. Southern R. Co. v. Bryant, 95 Va. 212, 28 S. E. 183. Contributory Negligence of Traveler.-Where the view of the track is obstructed, and the railroad company has failed to give notice of the approach of its train to a crossing upon the highway, and a person in attempting to go across the track, not being able to see the train on account of obstructions, and being obliged to act upon his judgment at the time of cross going upon the track under such circumstances is not a question of law to be decided by the court, but a matter of fact to be determined by the jury. Southern R. Co. v. Bryant, 95 Va. 219, 28 S. E. 183. Proof of the failure of a railroading, is injured, the propriety of his company to give the crossing signal required by statute, and of injury to the plaintiff, are not of themselves sufficient to support a verdict against the company. But such verdict will not be disturbed where the evidence tends to show that the injury would not have been inflicted, but for the failure of the company to give such signal. Simons v. Southern R. Co., 96 Va. 152, 31 S. E. 7. General Allegation of Negligence. The allegation in a declaration that the defendant, "without ringing the bell Whether a traveler approaching a railroad crossing used due care or not is a question for the jury, to be determined from all the facts of the case. Kimball v. Friend, 95 Va. 125, 27 S. E. 901. Sounding Whistle.-It was said by Judge Buchanan, in Atlantic, etc., R. Co. v. Reiger, 95 Va. 418, 28 S. E. 590. "The legislature had determined where the whistle was to be sounded, and it was not for the court or jury to determine that sounding it at some other place or in some other manner was equally as good. The question which the jury had to determine was not whether one kind of warning was as good as another, but whether under all the circumstances of the case, although the defendant may have failed to sound the whistle in the manner required by statute, the plaintiff's injury was proximately caused by the defendant's negligence." See also, Simons v. Southern R. Co., 96 Va. 155, 31 S. E. 7. But it is error to leave it to the jury to determine whether sounding the whistle at some other place or in some other manner than that prescribed by the statute was equally as good. Atlantic, etc., R. Co. v. Reiger, 95 Va. 419, 28 S. E. 590. III. Obstruction of Crossing. Unlawful Obstruction.-Obstruction of streets by a railroad company, unless the train is standing to load or unload passengers, and unless a passway is left open, is unlawful (acts, 1883-'84, p. 499); and the company is liable to fine and for such damages as may be caused thereby to any person. Code, § But these damages must be 2900. Richmond, etc., proved, not inferred. R. Co. v. Noell, 86 Va. 19, 9 S. E. 473. Injury to Stock.-Instruction that the stock reached the obstructed crossing without the negligence of the plaintiffs, then if the obstruction turned or caused the stock to turn up the railroad track and were killed by a passing train, then the jury shall find for the plaintiffs, is erroneous, in assuming as a matter of inference that the injury was caused by the obstruction. Richmond, etc., R. Co. v. Noell, 86 Va. 19, 9 S. E. 473. See generally, the title Failure to Close Gates.-In cases where the failure to close a gate at a railway crossing is followed by a col- ANIMALS, vol. 1, p. 375. lision between a train and a traveler, Proximate Cause.-Where a railthe question of negligence or contrib-road company left a box car standing utory negligence is one for the jury. Kimball v. Friend, 95 Va. 125, 27 S. E. 901. "It may be that a silent gong is not as strong an assurance to the traveler that the track can be crossed in safety as an open gate, but it is a circumstance upon which he may rely, and which the jury must consider in connection with the other facts of the case in determining the question of contributory negligence." Kimball v. Friend, 95 Va. 125, 27 S. E. 901. on a side track so near a crossing that it prevented the engineer on an approaching train from seeing a wagon which was about to cross the track, in consequence of which the train ran into the wagon and injuries resulted therefrom, it was held, that while the company may have been guilty of some negligence in leaving the box car on the siding, still if the plaintiff's own negligence was the proximate cause of the injury, he can not recover. Nash v. Richmond, etc., R. Co., 82 Va. 55. Cross Remainders. See the title REMAINDERS, REVERSIONS AND EXECUTORY IN TERESTS. CRUEL AND UNUSUAL PUNISHMENT.-See Com. v. Wyatt, 6 Rand. 701. And see the title CONSTITUTIONAL LAW, ante, p. 199. Cruelty. As a ground for divorce, see the title DIVORCE. I. Definition and Nature, 145. II. The Indictment, 145. A. Form and Allegations, 145. B. Surplusage, 146. III. Evidence, 146. IV. Security to Keep the Peace, 146. V. Review, 147. CROSS REFERENCES. See the title ANIMALS, vol. 1, p. 373. I. Definition and Nature. Construction of Words Torture and Torment. In an indictment under § 1, ch. 74, of acts of 1875, providing that cruelty to animals shall be deemed a misdemeanor, the words "torture" and "torment" are used as generic terms, and include such acts as beating, depriving of necessary sustenance and others. The circumstances and the manner of the torturing and tormenting as the case may be must be stated. State v. Gould, 26 W. Va. 258. Nature of Offense.-West Virginia Code, 1899, ch. 149, § 14, provides tha cruelty to animals (more specifically described in said section) shall be deemed a misdemeanor. So also, § 1, ch. 74, of acts of 1875. See State v. Gould, 26 W. Va. 258. Virginia Code-Corresponding Section. In the Virginia Code for section corresponding to W. Va. Code, 1889, ch. 149, § 14, providing that cruelty to animals shall be deemed a misdemeanor, see Va. Code, 1904, 3796a. II. The Indictment. the following form is sufficient: "The grand jurors of the state of West Virginia in and for the body of the county of Wood, and now attending the said court and upon their oaths present, that Stephen Gould on October 13, 1881, in the said county, did unlawfully and willfully and cruelly beat, shoot, torture, and otherwise ill-treat a certain beast called a mule, the owner or owners of which said mule is to the grand jurors unknown, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." State v. Gould, 26 W. Va. 258. dictment under § 1, ch. 74, of acts of Description of Offense. In an in1875, providing that cruelty to animals shall be deemed a misdemeanor, where either of the words "overdrive," "overload," "deprive of necessary sustainance," "unnecessarily and cruelly beat" or "needlessly mutilate or kill" is used to describe the offense, it is not necessary to add circumstances under or manner in which the act was done. State v. Gould, 26 W. Va. 258. Ownership and Value.-In an indictment under § 1, ch. 74, of acts of 1875, See the title INDICTMENTS, IN- providing that cruelty to animals shall FORMATIONS AND PRESENTMENTS. be deemed a misdemeanor, it is not necessary to set forth the ownership or value of the animals. State v. Gould, 26 W. Va. 258. A. FORM AND ALLEGATIONS. Sufficiency of Indictment.-In an indictment under § 1, ch. 74, of acts of Allegation as Nature of Animal1875, providing that cruelty to an- Judicial Notice.-In an indictment unimals shall be deemed a misdemeanor, der § 1, ch. 74, of acts of 1875, provid ing that cruelty to animals shall be deemed a misdemeanor, it is not necessary to allege that a mule is a domestic animal, because the court will take judicial notice of the fact that a mule is a domestic animal in this state. State v. Gould, 26 W. Va. 258. Joinder of Counts.-In an indictment under § 1, ch. 74, of the acts of 1875, making it a misdemeanor to overdrive, torture, torment, deprive of neccessary sustenance, or unnecessarily or cruelly beat, or needlessly mutilate or kill any domestic animal, as the language describes seven separate and distinct offenses of a similar character, it is a fatal defect to unite two of fenses in one court. State v. Gould, 26 W. Va. 258. But see post, "Surplusage," II, B. B. SURPLUSAGE. and Illtreat". driving, overloading, or depriving of necessary sustenance or unnecessarily or cruelly beating or needlessly mutilating or killing, the words "and torture," "and torment," or either of them would not cause such count to be fatally defective as including a charge of more than one offense in a single count, the added words "and torture," "and torment" being mere surplusage. State v. Gould, 26 W. Va. 258. III. Evidence. Act Heard but Not Seen. In an indictment under § 1, ch. 74, of acts of 1875, providing that cruelty to animals shall be deemed a misdemeanor, it was held, that the jury had a right to infer that the defendant cruelly beat a mule where testimony showed that mule went into a barn followed by the defendant with a clapboard, and that witness heard defendant striking the mule in the barn but could not see him. IV. Security to Keep the See generally, the title BREACH OF THE PEACE, voi. 2, p. 615. "Shoot, Torture Ownership. In an indictment under § 1, ch. 74, of acts of 1875, providing that cruelty to animals shall be deemed a misdemeanor, in the following form: "The grand jurors of the state of West Virginia in and for the body of the county of Wood, and now attending said court upon their oaths present that Stephen Gould, on October 13, Security to Keep the Peace.-In an A. D., 1881, in the said county, did un-indictment under § 1, ch. 74, of acts lawfully and willfully and cruelly beat, shoot, torture, and otherwise ill-treat a certain beast called a mule, the owner or owners of which said mule is to the grand jurors unknown, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state," the words "shoot," "torture," and otherwise "illtreat," and the words "the owner or owners of which said mule is to the grand jurors unknown" are mere surplusage. State v. Gould, 26 W. Va. 258. of 1875, providing that cruelty to animals shall be deemed a misdemeanor, that part of the judgment was set aside which required the defendant to give a bond with approved security to keep the peace and be of good behavior or in default thereof be imprisoned till such bond be given. No one but persons not of good fame are required to give securities for their good behavior except in a very few cases set out specifically in the statute law. (W. Va. Code, ch. 153, §§ 1, 9, 11.) Also by the common law no man Words "Torture and Torment."-In can be required to give securities to an indictment under § 1, ch. 74, of acts keep the peace or be of good behavior, of 1875, providing that cruelty to an- simply because he has committed a imals shall be deemed a misdemeanor, past misdemeanor. State v. Gould, 26 the adding in any one count for over- | W. Va. 258. |