Norfolk & W. Ry. Co v. Coffey

• Decision Date: 07 December 1905
• Citation: 104 Va. 605,52 S.E. 367
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. COFFEY.

52 S.E. 367

104 Va. 605

NORFOLK & W. RY. CO.

v.COFFEY.

Supreme Court of Appeals of Virginia.

Dec. 7, 1905.

On petition for rehearing. Order reversing and remanding the cause set aside, and judgment of circuit court affirmed.

For former decision, see 51 S. E. 729.

PER CURIAM. Upon the petitions of both the plaintiff in error and defendant in error to rehear the judgment of this court, rendered in this case on the 26th day of September, 1905, at its place of session in the city of Staunton, reversing the judgment of the circuit court of Rockbridge county, and remanding the case to that court for further proceedings to be had therein not in conflict with the opinion of this court, it appearing from said petitions that the plaintiff in error has expressly waived its pleas of the statute of limitations, and that both parties desire a final disposition of this case upon the merits as presented by the record, independently of the defense of the statute of limitations:

On mature consideration whereof the court, being of opinion that the plaintiff in error was guilty of actionable negligence in failing to use ordinary care to keep its rock quarry, in which the defendant in error was employed as a laborer, in reasonably safe condition (and that said unsafe condition was not attributable to the work which was being conducted in said quarry), which negligence was the proximate and efficient cause of the injuries suffered by the defendant in error, and that the charge of contributory negligence alleged against the defendant in error is not sustained by the evidence, doth so decide and declare.

Therefore (without in any manner receding from the views expressed by this court in its opinion delivered in the case, as originally submitted on the pleadings) upon the case as now presented by the record, with the pleas of the statute of limitations withdrawn, it is considered by the court that the order heretofore entered in the case be set aside, and that the judgment of the circuit court be affirmed.

And it is further considered by the court that the plaintiff in error pay to the defendant in error damages according to law, and also his costs by him about his defense herein expended.

Which is ordered to be entered in the order book here, and forthwith certified to the clerk of this court at Staunton, who will enter the same in the order book there and certify it to the said circuit court of Rockbridge county.