The

would or would not have been any indication of the child's danger had he been seen. duty to keep a reasonable lookout at places constantly used, with the knowledge of the company, at all hours of the day by large numbers of men, women, and children, is an established rule. Blankenship v. C. & O. Ry. Co., 94 Va. 449, 27 S. E. 20.

This instruction announces no new principle of law. It is based upon the evidence, and correctly propounds the plaintiff's theory of the case without prejudice to the rights of the defendant.

We are further of opinion that the circuit court did not err in modifying instruction No. 1 asked for by the defendant.

The modification complained of consisted in striking out the latter half of the instruc tion, which was in these words: "And you are further instructed that even if you be lieve that those in charge of and operating the said train saw Willie Carr on or near the track in front of the said train, and his size and appearance were such as to indicate to them that he was a boy of such age and intelligence as to be able to act for and take care of himself, and not a mere helpless infant, and that he was accompanied by his sister, who was older than himself, they had a right to presume that he would get out of the way in time to save himself, or be gotten out of the way in time to be saved, unless it appeared to them that he was not in possession of his faculties or in control of his movements, or that there was some other peculiar circumstance to indicate that he was in danger; and you are instructed that the defendant owed him no duty to take steps to avoid him in the absence of such indications."

The error in this part of the instruction is that it assumes for its basis that those it charge of the train saw the child, whereas there was no evidence of that fact adduced at the trial. The exidence of those in charge of the train shows that the child was not seen by any one of them, and that no one of them knew that an accident had happened for some time after the occurrence. Instructions must be limited to the facts brought out by the evidence, and an instruction where there is no evidence for it to rest upon is improperly granted. Seaboard & Roanoke R. Co. v. Vaughan's Adm'r, 104 Va. 113, 51 S. E. 452.

We are further of opinion that the circuit court did not err in sustaining the objection taken by the plaintiff to certain questions asked his witness William Carr on cross-examination, and certain questions asked the defendant's witness, Mary Bray.

William Carr, though the next friend of the real plaintiff, Willie Carr, was merely a witness in the case. The question asked him on cross-examination was:

"Did you

tell Mary Bray that, if she would testify for you to-day, you would see that she got paid?" After witness had denied that he made the statement, further questioning,

along the same line was objected to, and the objection sustained. This evidence was collateral to the issue, and calculated to divert the jury from the case before them.

"In order to avoid on interminable multiplication of issues, it is a settled rule of practice that, when a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question." Wharton on Law of Ev. vol. 1, § 559, and authorities there cited in support of the text.

We are further of opinion that the circuit court did not err in refusing to set the verdict aside as contrary to the law and the evidence. The questions of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff were for the jury to determine. The evidence tended to sustain the verdict, and therefore it cannot be disturbed by this court. N. & W. Ry. Co. v. Spencer, 104 Va. 657, 52 S. E. 310.

We are further of opinion that this court cannot disturb the verdict upon the ground that it is excessive. The rule governing in such cases has been so often stated by this court that it is needless to repeat it here. N. & W. Ry. Co. v. Shott, 92 Va. 34, 22 S. E. 811; Richmond Ry., etc., Co. v. Garthright, 92 Va. 627, 24 S. E. 267, 32 L R. A. 220, 53 Am. St. Rep. 839.

The judgment complained of must be affirmed.

(106 Va. 501)

SOUTHERN RY. CO. v. HILL. (Supreme Court of Appeals of Virginia. Jan. 31, 1907.)

SUPREME Court of

COURTS - JURISDICTION
APPEALS-WRIT OF ERROR.

Const. art. 6, § 88 [Code 1904, p. ccxxx] pro vides that, subject to reasonable rules, etc., the Supreme Court of Appeals shall have appellate jurisdiction in all cases involving the constitutionality of a law, as being repugnant to the Constitution of the state or of the United States. Code 1904, c. 140, § 2947, providing for appeals from justices' judgments to circuit and corporation courts, limits the right of appeal thereunder to cases involving the constitutionality of an ordinance or by-law of a corporation or in which the matter in controversy, exclusive of interest, exceeds $10 in value, and does not include cases involving the constitutionality of a law; but section 2956 declares that, when an appeal is allowed from any order or judgment of a justice, it shall be cognizable by the circuit court of the county or the corporation court of the corporation in which the order or judgment is rendered, except in a case involving the constitutionality or validity of an ordinance or by-law of the corporation, in which case it shall be cognizable by the circuit court having jurisdiction over the corporation. Section 3455 provides that no petition shall be presented for an appeal from or writ of error to any judgment of a circuit or corporation court, which is rendered on appeal from the justice's judgment, unless the controversy exceeds $300 in value, involving a freehold or franchise, or the action of the state corporation commission, or some matter not merely pecuniary. Held, that a justice's judgment involving the constitutionality of a rule of the state corporation commission, as af

fecting interstate commerce, was not reviewable on direct writ of error by the Supreme Court of Appeals.

Keith, P., and Cardwell, J., dissenting.

Error to Court of Justice of the Peace for City of Danville.

Action by J. R. Hill against the Southern Railway Company. A justice's judgment was rendered in favor of plaintiff, and defendant prosecuted a direct writ of error from the Supreme Court of Appeals. Dismissed.

Munford & Hunton, and Wm. A. Anderson, for plaintiff in error. M. P. Bonifant and Meade Haskins, for defendant in error.

WHITTLE, J. The judgment sought to be reviewed by this writ of error was rendered by a justice of the peace in favor of the defendant in error, Hill, against the plaintiff in error, the Southern Railway Company, upon a warrant for $9 and costs. The proceeding was founded upon the alleged violation by the railway company of rule 2 of the storage and demurrage and car service rules prescribed by the State Corporation Commission of Virginia, on account of delay in the shipment of a car load of wood, to be hauled by the railway company from its station at Virgilina, in Halifax county, Va., to the city of Danville, Va.; the road passing for part of the distance between these points over the territory of the state of North Carolina.

It is insisted that the foregoing rule, as applied to such a shipment, is an effort on the part of the State Corporation Commission to regulate commerce between the states, and consequently violates paragraph 3 of section 8 of article 1 of the Constitution of the United States.

We are met, in limine, with the question of the jurisdiction of this court to entertain the writ of error. The railway company, upon the premise that the constitutionality of rule 2 is involved, invokes the jurisdiction of this court under section 88 of article 6 of the Constitution of Virginia, the language of which, so far as applicable to the matter in judgment, is as follows:

"Subject to such reasonable rules as may be prescribed by law, as to the course of appeal, the limitation as to time, the security requir ed, if any, the granting or refusing of appeals, and the procedure therein, it shall, by virtue of this Constitution, have appellate jurisdiction in all cases involving the constitutionality of a law as being repugnant to the Constitution of this state or of the United States."

The pretension that the judgment in question is reviewable in the first instance by this court is based upon the assumption that the Legislature has omitted to exercise Its prerogative of prescribing reasonable rules regulating the course of appeal in such case, and therefore that the provision referred to, being self-executing, confers jurisdiction upon this court. In that connection it is argued that section 2947, c. 140, Va. Code 1904, which

provides for appeals from judgments of a justice to the circuit and corporation courts, limits the right of appeal to cases involving the constitutionality or validity of an ordinance or by-law of a corporation, or in which the matter in controversy, exclusive of interest, is of greater amount or value than $10, and does not include cases involving the con stitutionality of a law.

While it is true that section 2947 deals alone with the two classes of cases specified, section 2956 of the same chapter is of wider scope, and prescribes the course of appeal in all cases where appeals are allowed "from any order or judgment of a justice." The section reads as follows: "When appeal is allowed from any order or judgment of a justice, it shall be cognizable by the circuit court for the county or the corporation court of the corporation in which the order was made or judgment rendered, unless when the order is made or judgment rendered in a corporation, in a case involving the constitutionality or validity of an ordinance or by-law of said corporation, in which case it shall be cognizable by the circuit court having jurisdiction over said corporation."

Section 3455, in the matter of writs of error and appeals to this court, provides that "no petition shall be presented for an appeal from, or writ of error or supersedeas to,

any judgment of a circuit or corporation court, which is rendered on an appeal from a judgment of a justice, except in cases where it is otherwise expressly provided; nor to a judgment, decree, or or der of any court when the controversy is for a matter less in value or amount than three hundred dollars, exclusive of costs, unless there be drawn in question a freehold or franchise or the title or bounds of land, or the action of the State Corporation Commission or some matter not merely pecuniary."

If the contention of the plaintiff in error is correct, that the constitutional provision upon which it relies expressly allows an ap peal to this court from the Judgment of a justice in all cases involving the constitutionality of a law, then it would seem clear that sections 2956 and 3455 in terms apply to such case; the former prescribing the course and procedure of appeal from the justice's court, in the first instance, to the circuit and corporation court, and the latter providing for an ultimate appeal from the circuit and corporation courts to the Supreme Court of Appeals of the state.

The language of these sections is sufficiently comprehensive to justify that construction, and, being remedial statutes, they are to be liberally construed, so as to effectuate the purposes of their enactment. Such construction is also unquestionably more in harmony with the philosophy of our judicial systema system comprising courts of different grades, and providing an orderly and intelligent mode of procedure and course of appeal from the lowest tribunal to the next

in order of rank, until the court of last re sort is attained.

On the other hand, the insistence of the plaintiff in error that an appeal lies primarily from the lowest to the highest court in the state, ignoring intermediate courts and provisions for successive appeals, is not only incongruous and without warrant of precedent to sustain it, but, as we shall see presently, is impracticable under the procedure provided by statute in this jurisdiction. The pretension proceeds on the theory that the purpose of the Legislature, as manifested by section 2947, is to deny an appeal from judgments of a justice in all cases other than the two classes therein specified. We cannot assent to a construction which would place the Legislature in the attitude of ignoring or abridging the constitutional right of litigants to an appeal from the judgment of a justice in a case involving the constitutionality of a law or some other matter not merely pecuniary. To sustain that interpretation would require us to read into section 2956, "when an appeal is allowed from any order or judgment of a justice" by section 2947, "it shall be cognizable by the circuit court.

"In construing statutes, courts cannot add to or take from them, except in cases where the duty is plain in order to give an intelligent effect to them and thereby carry out the manifest intent of the Legislature. Hutchings v. Commercial Bank, 91 Va. 68, 73, 20 S. E. 950, 952." Tarrant v. Core, 56 S. E. 228, in which an opinion was handed down during the present term of the court.

The judgment sought to be reviewed was rendered upon a "warrant for a small claim," brought under chapter 140, in which sections 2947 and 2956 both occur. The case comes within the language of the latter section, and there are many considerations of sound policy and convenience which demand a liberal, rather than a strict, interpretation of those enactments. There can be no good reason for discrimination between litigants possessing, respectively, statutory and constitutional rights of appeal, allowing to the former the more convenient, expeditious, and economical remedy of an appeal from a judgment of a justice in the first instance to the circuit or corporation court, with the ultimate right of appeal to the Supreme Court of Appeals, but requiring the latter initially to appeal to the court of last resort.

Section 2957 of chapter 140 provides that, upon appeal from the order or judgment of a justice, the trial shall be had de novo, and "all legal evidence produced by either party shall be heard, whether the same was produced or not before the justice from whose decision the appeal is taken."

This provision is made necessary by the fact that a justice's court is not a court of record, and therefore the ordinary procedure governing appeals from courts of record would be otherwise inadequate to meet the exigencies of the situation. If an appeal

were allowed immediately from the judgment of a justice to this court, we should find ourselves in the dilemma (which it is the purpose of section 2957 to obviate) of having no adequate mode of procedure to dispose of it. The machinery provided for this court, in exercising its appellate jurisdiction, is applicable exclusively to appeals from decisions of courts of record. It is necessarily limited to the consideration of errors which are apparent upon the face of the record, and its processes and pronouncements extend no further.

The Legislature has full power under the Constitution to prescribe reasonable rules as to the course of appeal and the procedure therein; and from the system adopted it is quite apparent that an ultimate, and not an immediate, appeal from the judgment of a justice's court to this court, in cases involving the constitutionality of a law, is contemplated. Section 3457 provides that a transcript of the record shall be exhibited with the petition for an appeal-an impossible require ment in an appeal from the judgment of a justice, until a record is made in the circuit or corporation court as provided by section 2957.

Mr. Barton, in discussing the jurisdiction of this court, observes: "The appellate jurisdiction extends to all matters of the requisite amount determined in the circuit or corporation courts." 1 Bar. L. Pr. 39.

"The Court of Appeals can only consider a case on writ of error, on the record as made in the trial court. If this fails to disclose the errors complained of, they cannot be considered." Barnes v. Commonwealth, 92 Va. 794, 23 S. E. 784.

Our reports abound with decisions illustrative of that principle, and the contention of the plaintiff in error, so far as we are advised, is wholly without precedent in this commonwealth.

The case of Bransford v. Karn, 87 Va. 242, 12 S. E. 404, is authority for the proposition that, where the constitutionality of a statute is involved, the decision of a corporation court upon an appeal from a justice is not final.

In conclusion it may be observed that the view which we have taken in this case does not deny to the plaintiff in error its constitutional right of appeal, but only demands the enforcement of that right in the due and orderly manner which the statute has prescribed.

Having reached the conclusion that the court is without jurisdiction to entertain this writ of error, we have, for obvious reasons, abstained from expressing any opinion on the merits.

For these reasons, the writ of error must be dismissed, as having been improvidently awarded.

KEITH, P. (dissenting). I am unable to concur in the decision in this case. In my

opinion this court, and this court alone, has jurisdiction under the Constitution and laws of Virginia to entertain an appeal from a Justice's judgment rendered for a sum less than ten dollars in amount and involving a constitutional question.

I am further of opinion that the regulation prescribed by the State Corporation Commission, the validity of which is called in question in this record, is an invasion of the exclusive power of the Congress of the United States to legislate by virtue of article 1, § 8, cl. 3, of the Constitution of the United States, and is therfore null and void.

CARDWELL, J., concurs.

(106 Va. 517)

NEWPORT NEWS & O. P. RY. & ELEC TRIC CO. v. McCORMICK. (Supreme Court of Appeals of Virginia. Jan. 31, 1907.)

1. PLEADING OBJECTION TO EVIDENCE-VABIANCE-WAIVER.

Va. Code 1904, § 3384, provides that, if at the trial there appears to be a variance between the evidence and allegations, the court, if justice will be promoted, may allow the pleadings to be amended, or direct the jury to find the facts, and, after such finding, if it considers the variance such as could not have prejudiced the opposite party, shall give judgment according to the rights of the case. Held that, where no objection was made to the admissibility of evidence and no motion made to exclude on account of a supposed variance, the objection must be considered on appeal as waived.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1438-1441.] 2 TRIAL-INSTRUCTIONS-FORM.

Instructions should be concrete, and should not enunciate merely abstract propositions of law.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 582, 583.]

3. APPEAL AND ERROR-HARMLESS ERROR-INSTRUCTIONS.

The giving of an instruction enunciating merely an abstract proposition of law, instead of being concrete, is no ground for reversal, unless it appears that it was calculated to mislead or confuse the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4219, 4220; vol. 46, Trial, 584.]

4. TRIAL - INSTRUCTIONS EVIDENCE.

APPLICATION TO

Where, in an action against a carrier for injuries to a passenger, the evidence for plaintiff showed the accident to be the result of the negligence of the motorman in prematurely starting the car when plaintiff was alighting, and the defense was that plaintiff stepped from the car while it was moving, an instruction that, though plaintiff was guilty of contributory negligence, yet, if the jury believed that the conductor knew of such negligence and could have avoided the accident, plaintiff's neg. ligence would not defeat a recovery, was reversible error, as involving a hypothesis having no foundation in the evidence and tending to deprive the defendant of the defense of contribu tory negligence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46. Trial, §§ 596-603; vol. 9, Carriers, § 1498.]

5. CARRIERS - INJURY TO PASSENGER-CONTRIBUTORY NEGLIGENCE.

Where the operatives of a street car negligently carry a passenger beyond his destina

tion, such conduct does not absolve him from contributory negligence in jumping from the car while it is in motion.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1391-1393.] 6. SAME QUESTIONS FOR Jury.

It is not negligence as a matter of law for a passenger to alight from a moving street car; but the question is for the jury under all the circumstances of the particular case.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 13611⁄2, 1402.]

Error to Corporation Court of Newport News.

Action by N. L. McCormick against the Newport News & Old Point Railway & Electric Company. Judgment in favor of plaintiff, and defendant brings error. Reversed, and remanded for a new trial.

E. M. Braxton and S. Gordon Cumming, for plaintiff in error. Ashby & Read, for defendant in error.

WHITTLE, J. The plaintiff in error, the Newport News & Old Point Railway & Electric Company, brings this writ of error to the judgment of the corporation court of the city of Newport News, awarding damages to the defendant in error, N. L. McCormick (who was plaintiff in the court below), in an action for personal injuries.

The first assignment of error is to the refusal of the court to grant an instruction founded upon an alleged variance between the declaration and proof. Of that assignment it is sufficient to observe that, no ob jection having been made to the admissibil. ity of evidence, or no motion to exclude it on account of the supposed variance, the objection must be considered as having been waived. A different rule of practice would deprive the plaintiff in such case of the benefits of section 3384, Va. Code 1904. Shenandoah Valley R. Co. v. Moose, 83 Va. 827, 3 S. E. 796; Bertha Zinc Co. v. Martin, 93 Va. 791, 22 S. E. 869, 7 L. R. A. 777; Richmond R., etc., Co. v. West, 100 Va. 188, 40 S. E. 643; Portsmouth St. R. Co. v. Peed's Adm'r, 102 Va. 662, 47 S. E. 850; Moore Lime Co. v. Johnston, 103 Va. 84, 86, 48 S. E. 557.

The objection to instruction B, given at the Instance of the plaintiff, is that it propounds only an abstract principle of law.

It is unquestionably true that instructions should be concrete, and ought not to enunciate merely abstract propositions of law (N. & W. Ry. Co. v. Bell, 104 Va. 836, 52 S. E. 700); but the violation of the rule will not constitute reversible error, unless the court can perceive that it was calculated to mislead or confuse the jury. Reed v. Commonwealth, 98 Va. 817, 36 S. E. 399.

The objection to instruction C, which the court also gave at the request of the plaintiff, is that there was no evidence to support it.

The instruction tells the jury "that, even though they may believe from the evidence that Mrs. McCormick was guilty of contrib

utory negligence in attempting to leave the car while the same was in motion, still, if the jury shall further believe from the evidence that the conductor in charge of such car knew of such negligence on her part, and that it was dangerous to attempt to get off of the car while it was in motion, and that such conductor could, by the exercise of proper care, diligence, and precaution, have avoided the accident complained of, then the plaintiff's said negligence will not defeat a recovery."

The instruction was intended to illustrate the doctrine of the last clear chance, and is predicated upon the supposed negligence of the conductor in failing to exercise proper care to avoid the accident after the negligence of the plaintiff in attempting to leave the car while in motion became known to him. There was not only no evidence upon which to base that hypothesis, but the testimony of the plaintiff absolves the conductor from any negligence whatever, and ascribes the accident to the negligence of the motorman in prematurely starting the car at the moment she was attempting to alight. In the absence of evidence the manifest tendency of the instruction was to mislead the jury and to deprive the plaintiff in error of the defense of contributory negligence on the part of the plaintiff in the court below. This was error. Rocky Mount Tr. Co. v. Price, 103 Va. 298, 49 S. E. 73; Va., etc., Co. v. Harris, 103 Va. 708, 717, 49 S. E. 991; Jeremy Imp. Co. v. Commonwealth (decided at the present term) 56 S. E. 224.

The court refused to instruct the jury, on behalf of the defendant, "that while it is the duty of a common carrier of passengers to stop its cars and allow a passenger reasonable time to alight therefrom, if requested to do so, yet a failure to stop when so requested does not justify a passenger in alighting or attempting to alight from a moving car; that it is the duty of the passenger under such circumstances to remain on the car until it has come to a stop and she can safely alight therefrom."

We are of opinion that the court did not err in refusing this prayer. It is certainly true as a general proposition that the misconduct of the conductor in carrying a passenger beyond his destination can afford no sufficient justification for his hazarding life or limb in jumping from a moving car. If, however, he should negligently persist in doing so and suffers injury, he is to be regarded as the author of his own misfortune, and his right to recover is barred, upon the principle that the negligence of the company in failing to stop the car was the remote, while the negligence of the plaintiff in leaping from the car while in motion was the proximate, cause of the injury. Jamison v. C. & O. Ry. Co., 92 Va. 327, 23 S. E. 758, 53 Am. St. Rep. 813; Washington, etc., R. Co. v. Lacey, 94 Va. 460, 26 S. E. 834; Blankenship v. C. & O. Ry. Co., 94 Va. 449, 27 S. E. 20; Outen

v. North & South St. Ry. Co. (Ga.) 21 S. E. 710; Houston & Texas Cent. Ry. v. Leslie, 9 Am. & Eng. R. Cases, 407; L. S. & Mich. So. Ry. v. Bangs, 3 Am. & Eng. R. Cases, 426; Cent. R., etc., Co. v Letcher, 12 Am. & Eng. R. Cases, 115; Lee v. Elizabeth, P. & C. J. Ry. Co. (N. J. Sup.) 55 Atl. 106.

The general rule, however, formulated in the rejected instruction, is subject to the qualification that the question of whether the passenger has been guilty of such negligence as would bar a recovery in the particular case is a mixed question of law and fact, to be submitted to the determination of the jury under proper instructions. Such conduct does not necessarily constitute negligence per se; the criterion being that if, under all the circumstances, an ordinarily prudent person would have been warranted in attempting to alight from a moving car, negligence ought not to be imputed to a passenger who pursues that course. 5 Am. & Eng. Enc. L. (2d Ed.) 669; Booth on St. Rys. § 337; Filer v. N. Y. C. R. Co. (N. Y.) 10 Am. Rep. 327; St. L, etc., Ry. Co. v. Cantrell (Ark.) 40 Am. Rep. 105; Lambeth v. N. C. etc., R. Co. (N. C.) 8 Am. Rep. 508; Western R. Co. v. Young, 51 Ga. 489.

The other instructions offered by the defendant were intended to take advantage of the variance between the declaration and the evidence, and that question has been disposed of in connection with the first assignment of error.

The remaining assignments are not likely to arise at the next trial, and therefore need not be noticed.

For the misdirection of the jury in the particulars mentioned, the judgment must be reversed, the verdict of the jury set aside, and the case remanded for a new trial, to be had not in conflict with this opinion.

(127 Ga. 212)

TERRY v. BROADHURST. (Supreme Court of Georgia. Dec. 20, 1906.) 1. EVIDENCE-WRITTEN INSTRUMENT-EXECU

TION.

Where it appeared that the subscribing witness to a written instrument was attending school in another state at the time of the trial, his absence was sufficiently accounted for, and the execution of the instrument could be proved otherwise than by his testimony. Civ. Code 1895, § 5245; Harris v. Cannon, 6 Ga. 382, 389. 2. APPEAL-REVIEW.

The evidence supported the verdict, and there was no error in overruling the motion for a new trial.

(Syllabus by the Court.)

Error from City Court of Americus; C. R. Crisp, Judge.

Action by R. S. Broadhurst against Frank Terry. Judgment for plaintiff, and defendant brings error. Affirmed.

Blalock & Cobb, for plaintiff in error. Williams & Harper, for defendant in error.

LUMPKIN, J. Judgment affirmed. All the Justices concur.