The jury are further told that, if they believe the word "his" was interlined before the signing and delivery, then, under the contract, with the word "his" as part thereof, the plaintiff had the right to sell ice to any one he might desire, although he might know and expect the purchasers to peddle the ice from their own wagons, and that the defendant was not justified, because the plaintiff made such sales, in refusing to deliver under the contract such ice as the plaintiff might order, and that, if the defendant did refuse to deliver any more ice to the plaintiff because he sold to persons who would peddle the same from their wagons, it was a breach of the contract by the defendant, and they must find for the plaintiff.

Taking the language of the contract, and the usual and ordinary import of the words used, the construction given by the lower court appears to be free from objection, and there was no error to the prejudice of the defendant in instruction No. 1 given for the plaintiff.

Instruction No. 4 for the plaintiff, which is objected to, and instructions "b," "c," and "d" offered by the defendant, and refused, are all addressed to the measure of damages recoverable in the event the jury should find for the plaintiff. It appears from the evidence that, after entering into the contract here involved, the plaintiff made contracts with several parties in the ice business to sell them ice at a profit of $1 per ton on its cost price, as fixed by the contract. Among those contracted with by the plaintiff were Ford, Burley, and Crabbin, each of whom agreed to take ice at $6 per ton. Instruction No. 4 limits the recovery to the loss sustained by the failure of Jennings to fill his contract with these three parties, each of whom testified to the amount of ice which he could reasonably expect, from his past experience in the ice business, to dispose of. It thus appears that the profits were certain, and the amount thereof a matter of simple calculation.

In Grubb v. Burford, 98 Va. 553, 37 S E. 4, it is said that: "In ascertaining damages where there is an interference with or a withholding of property, or a breach of contract, the gain prevented, if provable, may be recovered. Profits which are the difference between the agreed price of something contracted for, and its ascertainable value or cost, are recoverable." See Iron Co. v. Teaford, 96 Va. 372, 31 S. E. 525; and Trigg v. Clay, 88 Va. 330, 13 S. E. 434, 29 Am. St. Rep. 723.

In the light of these authorities, instruction No. 4 correctly stated the law applicable to the case; and instructions "b," "c," and "d," which told the jury, in varying form, that the plaintiff could not recover as damages any profits which he should have received from his resale of the ice to other parties, were properly rejected.

The remaining assignment of error to be 42 S.E.-56

considered is the action of the court in refusing instruction "a" asked for by the de fendant, and modifying instruction "g."

Instruction "a" was as follows: "The court instructs the jury that the alteration on the face of the instrument offered in evi dence by the plaintiff detracts from its cred it and makes it suspicious, and this suspicion the plaintiff was bound to remove by a pre ponderance of evidence."

The modification of instruction "g" was "that there is no extra burden on the plain tiff to show that the contract was not altered by the insertion of the words 'ice' and 'his, for on that question the burden of proof is equal."

The contract in question was executed and delivered to the plaintiff on the 3d day of April, 1900, and remained in his possession until produced on the trial. The interlineation of the word "ice" does not appear to have been material, but the interlineation of the word "his" changes the whole meaning of the contract. Without the word "his," the plaintiff was limited to selling by retail from his ice box. With the word "his" interlined, he was only excluded from selling from his own wagons on the street, but his right to sell by wholesale to other wagons, to be peddled on the street, was without restriction. It was therefore a vital question whether or not the interlineation of the word "his" was made before or after the contract was signed and delivered.

The burden is always upon the plaintiff to make out his case, and to establish by a preponderance of evidence every fact necessary to a recovery by him. The case at bar forms no exception to the general rule. In the case of an altered paper, if objected to on that ground, it cannot be introduced at all until sufficient foundation therefor has been laid to satisfy the court as to the propriety of letting it go before the jury. As already stated, the introduction of the paper is usually allowed upon the statement of the plaintiff that the interlineation was made before it was signed and delivered. But this action of the court in admitting the paper does not affect or shift the burden of proof when the fact is controverted, and there is a contest before the jury. In such case the burden is upon the party having possession of the instrument, and claiming under it, to satisfy the jury by a preponderance of evidence that the alteration was made under such circumstances as not to affect his right to recover. Priest v. Whitacre, 78 Va. 151; Elgin v. Hall, 82 Va. 680; Hodnett's Adm'x v. Pace's Adm'r, 84 Va. 873, 6 S. E. 217; Slater v. Moore, 86 Va. 26, 9 S. E. 419. Instruction "a" asked for by the defendant should have been given, and it was error to make the addendum mentioned to instruction "g." Instruction "e" touching the same subject, asked for by the defendant, was properly refused.

For the error in refusing instruction “a”

and adding to instruction "g," the judgment complained of must be reversed, the verdict set aside, and the cause remanded for a new trial.

BUCHANAN, J., absent.

(100 Va. 749)

HUMPHREYS' ADM'X v. VALLEY R. CO. (Supreme Court of Appeals of Virginia. Dec. 4,

1902.)

PERSONAL INJURIES

PROXI

RAILROADS MATE CAUSE-EVIDENCE-SUFFICIENCY. 1. Where the verdict of the jury in favor of plaintiff was set aside, and a new trial granted, plaintiff taking a bill of exceptions to such action of the court, and on the second trial plaintiff introduced no evidence, and judgment was entered against him, a writ of error to the judgment raised only the question of the propriety of the setting aside of the first verdict.

2. Regardless of whether a trespasser on a railroad track has been guilty of contributory negligence, the company is bound to do all it consistently can, after discovering his peril, to avoid injuring him.

3. A railroad engineer has a right to presume, until the contrary is indicated, that a pedestrian on the track will take the ordinary precautions for his own safety.

4. Plaintiff's intestate negligently attempted to walk upon and across a railroad track, with full knowledge that a train was approaching. There was nothing in his appearance to indicate to the engineer that he would not take due precautions for his safety, and, as soon as the engineer discovered that he was likely to be in danger he reversed the engine, sanded the track, and put on full air. He testified that he could not do all these things, and at the same time sound the alarm whistle, and that the means he took were far better calculated to save the deceased than to have sounded the whistle, though on this point there was some dispute. Held, that there was nothing in the evidence to warrant a conclusion that the engineer, after discovering the peril of deceased, negligently failed to do all he could to avoid the accident which followed.

Error to circuit court, Augusta county.

Action by Emma J. Humphreys, as admin. istratrix, against the Valley Railroad Company. Judgment in favor of defendant, and plaintiff brings error. Affirmed.

Curry & Glenn and A. C. Braxton, for plaintiff in error. J., J. L. & R. Baumgardner, for defendant in error.

CARDWELL, J. Emma J. Humphreys, administratrix, brought her action in the circuit court of Augusta county against the Valley Railroad Company for the recovery of damages by reason of the death of her intestate, William A. Humphreys, which she alleges was caused by the negligence of the defendant company.

At the November term, 1900, the case was tried by a jury, which rendered a verdict in favor of the plaintiff for $4,600, and upon motion of the defendant the verdict was set aside. as being contrary to the law and the evidence. At the May term, 1901, the case was again tried, and, no evidence being offered by the plaintiff, a verdict was rendered

in favor of the defendant, upon which the court entered judgment. At the first trial the plaintiff took only one bill of exceptions, and that was to the action of the court in setting aside the verdict and awarding a new trial. Therefore the only question for our consideration now is the propriety of the court's action in setting aside the first verdict. Marshall's Adm'x v. Railroad Co., 99 Va. 798, 34 S. E. 455; Chapman v. Investment Co., 96 Va. 177, 31 S. E. 74.

The deceased was a man 67 years of age, active, energetic, in good health, of ordinary intelligence, in possession of the senses of sight and hearing,-"a little deaf, but could hear an ordinary conversation." For three years prior to the accident out of which this suit arises, and which resulted in injuries to him from which he died in a few days, the deceased had lived within about 300 yards of the place where the accident occurred, in full view of the railroad and of the surroundings of the place of the accident.

The train which struck the deceased was a scheduled freight train with passenger coach attached, made up with the engine and tender, 12 loaded cars, 1 empty, and the passenger coach, and reached Verona station, where the accident occurred, about 15 minutes behind its scheduled time. On the afternoon of the day of the accident, October 17, 1899, a bright, clear day, the deceased left Staunton, and drove in an open one-horse surrey, with his wife, along the Valley turnpike, which for a considerable distance south and towards Staunton from Verona station is near to, and nearly parallel with, the Valley Railroad. On reaching the point where the road upon which the dwelling of the deceased is situated, and which crosses the railroad at Verona station, intersects the turnpike, he turned into the road leading to his dwelling. From the point where the turnpike and the road from the turnpike to decedent's dwelling intersect, the Valley Railroad is in plain view, and the view of it is unobstructed from every point on the road into which the deceased turned, from its intersection with the turnpike to its intersection with the railroad, except a partial obstruction for a short distance by a house standing on the corner at the intersection, and a small stable near the railroad. The deceased drove from the turnpike across the railroad, stopped just beyond or east of the railroad track at a point where the rear end of his surrey was about 19 feet from the center of the railroad track. While he was driving from the turnpike to the railroad crossing, William Harris, in a two-horse wagon, was driving the same road, meeting him, and in plain view of him, "whipping his horses crossing the track." Harris stopped immediately at the corner of the depot, very near the track and the crossing, and just as he "stopped and was tying his lines in order to get out and stand at his horses' heads," the deceased drove by towards the

railroad, "hurrying his horse up." At that time the train was approaching in full view of Harris, and necessarily so to the deceased if he looked at all for an approaching train. After stopping on the east side of the railroad track, 19 feet from it, as stated, the deceased got out of his surrey on the right or south side, in the direction from which the train was approaching, and, according to plaintiff's witnesses, walked back to the railroad track at a point a few feet from the crossing, turned down the track toward the depot, walking on the ends of the ties a short distance, and then stepped over inside of the track, and, after taking five or six steps, was struck by the engine; but, according to defendant's witnesses, after getting out of his surrey to the right, facing the approaching train, the deceased walked diagonally to the railroad track, as if he was going directly across the track to the door of the store in the depot, and had gotten but one foot on the track when he was struck by the engine. The distance from the surrey to where deceased was struck-the nearest diagonal route-is about 60 feet, and from the crossing to where he was struck is about 45 feet. When he got upon the ends of the ties nearer the crossing (if the plaintiff's view that he got on the railroad at that point be correct), the train was 40 or 50 yards, only, from him. There were a number of persons at and around the depot when the accident occurred, and all of them saw the approaching train for some distance before it got near the crossing, the track being straight, and the view of it being unobstructed for 700 or 800 yards. One or more of these persons, seeing his danger, threw up their hands, and yelled to deceased to warn him of the approach of the train. His wife, whom he had just left, seeing that he was continuing on the railroad track, or about to step upon it in front of the approaching train, attempted to warn him of his peril by "screaming" to him, but he either did not hear or see any of these warnings, or, disregarding them, continued toward the store door in the depot for the purpose of getting his mail.

With the exception as to the route taken by the deceased from his surrey to the point at which he was struck by the engine, the foregoing facts are not controverted.

Verona station was not a regular stopping point for the train in question, but it stopped there only on signal to put off or to take on passengers or freight; and, according to the evidence given by all of the defendant's employés on the train, the whistle was blown at the whistling post a few hundred yards south of the station, and the signal for stop ping the train at the station, given by the conductor from the passenger coach through the two brakemen on the train and the fireman to the engineman, was answered by two short blasts of the whistle; and this is corroborated by other witnesses in the vicinity, in full view of the train, and but a short

distance away, one of them watching the train from a window. On the other hand, some of the plaintiff's witnesses say they did not hear the whistle, while others say that the whistle was not blown, nor was the bell rung.

The plaintiff, the wife of the deceased, rested her case upon her own evidence; that of her daughter, Mrs. Dunsmore, who was about 300 yards from the railroad, and one Faidley, who was standing at the store door, facing the depot platform.

It is too well settled to require citation of authority that, if the proximate cause of the plaintiff's intestate's death was his own negligence concurring with the negligence of the defendant, there can be no recovery; and in the able argument of her case here it is frankly said: "It is fully conceded by the plaintiff that Humphreys was negligent by being on the track without looking and listening for the train." This would have been true if the deceased had been struck at the crossing, but, as we have seen, he was struck at a point on the defendant's track where he had no right to be, whether he got on the track near the crossing and walked down it or stepped on it in front of the engine, and was there without taking any precautions for his own safety; for it is conclusively shown that, if he had looked or listened for an approaching train, as it was his imperative duty to do, he would have known of the approach of the train which struck him in ample time to have kept out of all danger of being struck by it. He was, therefore, a naked trespasser; and the defendant, notwithstanding it may have failed to give warning of the approach of the train, owed him no duty, save and except to do all that could be done, consistently with its higher duty to others, to save him from the consequences of his own negligent act, after his peril was discovered, regardless of whether he was guilty of contributory negligence or not. Railroad Co. v. Joner's Adm'r, 92 Va. 354, 23 S. E. 773, and authorities cited. See, also, Wood's Case, 99 Va. 156, 37 S. E. 846, and authorities cited.

In considering the question whether or not the defendant has been guilty of such negligence, in this respect, as to render it liable for damages, it is to be borne in mind that the case is not before us as upon a demurrer to evidence, since the trial judge set aside the verdict, and some latitude must be allowed to his discretion. It is also true that the verdict of the jury is entitled to great respect, and should not be disturbed, even by the trial court, unless plainly against the weight of evidence. Marshall v. Railroad Co., supra.

The contributory negligence of the deceased having been established,-in fact conceded, -the burden of proof was immediately placed upon the plaintiff to establish that the defendant, by the exercise of ordinary care and diligence, could have avoided injuring

nim after it discovered his peril. Railway Co. v. Bruce's Adm'r, 97 Va. 93, 33 S. E. 548, and authorities cited; Railway Co. v. Lacey, 94 Va. 460, 26 S. E. 834; Railroad Co. v. Joyner, supra.

Very shortly after the deceased left his surrey, he was concealed from the view of Mrs. Dunsmore by a pile of ties on the side | of the railroad, and, the horse to the surrey in which the plaintiff was sitting having taken fright at the train, and run off, Faidley is the only witness examined for the plaintiff who claims to have seen the whole occur

rence.

Faidley, a stranger in that locality, by occupation a painter, happened to be in the neighborhood on the occasion of this accident, and drove to Verona station in a buggy, hitched at the back porch to the west of the railroad track, and walked through the store to the door facing the railroad. His statement is: "I seen this train coming, but, in the first place, I saw the old man get out of the buggy, come behind the buggy, between the buggy and the track, and walk to the track, and step on the track. It looked to me like he was going to cross over, about three feet the other side of the crane, between the crane and the crossing. He stepped upon the end of the ties, walked down about even with the crane, I suppose, and stepped over inside the track, half bent over, looking down neither to the right nor to the left; and I seen the train coming. I reckon * * ** it was 40 or 50 yards from the old man when he stepped upon the ties,-when he first stepped upon the ties." He further says that Humphreys, after taking three or four steps upon the ties, then stepped over on the inside of the rail, the east rail, "looked like he sorter blundered, walked stiff; that the train was approaching very close then, and, after taking five or six steps, the train struck him; and that he [witness] did not think that Humphreys was in any danger when the train was 40 yards from him,"that is, when he stepped upon the end of the ties, about 3 feet from the crane, which is 28 feet from the point where he was struck. So that, when the witness thought the deceased was in any danger, the train was necessarily nearer to him than 40 yards, running on a downgrade of not less than 4 or 5 feet to the mile, and at a speed of at least 8 or 10 miles per hour, according to the weight of the evidence.

--

The engineman in charge of the train, shown to be a competent and efficient employé, upon seeing the deceased leave his surrey and start towards the track, was entitled to presume that he was a person of sound mind, in possession of the ordinary human faculties, would exercise reasonable care and prudence in avoiding danger, and would not get on the track, or go so near to it as to be in danger from the passing train, without looking or listening to see that he could safely do so, and, if actually on

the track, would get off of it in time to avoid injury. He (the engineman) was entitled to act upon this presumption until it became apparent to him, as a man exercising ordinary prudence, that the deceased was about to get upon the track, or dangerously near to it, or would keep on the track, without taking the precautions required of him for his own safety. This is conceded to be the general rule, with the qualification that, "if there is anything about the appearance of the person, or other circumstances, indicating to the engineman that such person is not conscious of the danger," the rule does not apply.

While this qualification is, in the abstract, proper, there is nothing whatever in the evidence to show that the appearance of the deceased was such as to indicate to the engineman that he was not conscious of his danger. Faidley says that he was walking "tolerably quick," or "going along at a pretty good lick." True, some of the witnesses say that "he was limping; walking all bent up with his head down"; that he seemed "to be bewildered"; "it looked like something was wrong"; and that the railroad hands who were at the depot in front of the deceased waived their hands and shouted to him. But none of them say that these things were apparent to the engineman. These witnesses being within a short distance only of the deceased, it cannot be assumed that what was apparent to them was also apparent to the engineman on the train. Besides, the throwing up of hands and "shouting" to the deceased necessarily did not take place until it was apparent to the witnesses that he was in danger, and, according to Faidley's view, he was in no danger until the train was near to him,-certainly much less than 40 yards; and, in fact, to use the witness' own words, "the train was approaching very close." Therefore these circumstances do not warrant the application of the qualification of the rule of law just stated.

With the view of stopping the train at the depot to put off passengers, the air brakes had already been applied, and the speed of the train reduced, according to plaintiff's witnesses, to 8 or 10 miles per hour.

The statement of the engineman is that, when approaching the crossing, he realized that the deceased was getting in danger, and reversed his engine, put the air on full, put sand on the track, and gave the engine steam to resist the speed of the train. The train was on a downgrade, and, the appliances for stopping it having been put in use, it was drifting. He then explains that, the air brakes having been applied for the stop at the depot as was intended, the emergency brake could not be applied with as much effect; that he could not reverse his engine, put the air on full, and sand the track, and at the same time sound the alarm whistle. According to his view, the means he used were far better calculated to give the de

ceased a chance to escape injury than sounding the alarm whistle. This statement of the engineman as to his efforts to stop the train is corroborated by all the employés on the train. The only variance between their statement and his is, the fireman says that the engine was reversed, and the sand put on at the cattle guard, a little south of the crossing. The four expert enginemen examined, two of whom were called by the plaintiff, concur in stating, in substance and effect, that, after it became apparent that the deceased was, or likely to be, in danger, it was impossible to stop the train before it struck him, and the only criticism they make of the action of the engineman was his failure to sound the alarm whistle; but none of them undertake to say that that would have had the effect of causing the deceased to keep off the track, or to get off if he was already on it. Some of them do say that it usually has that effect, but this is entitled to little or no weight, since the plaintiff's witness Faidley, who saw the whole occurrence, says "that, if he [deceased] could have seen at all, he would have seen the train." Therefore he knew the train was coming; and if it was his purpose, as would seem to have been the case, to continue on the track until he reached the point where he intended to get off, or to cross over the track before the train reached him, it is not at all probable that the alarm whistle would have changed his purpose.

The statement of the engineman, corroborated as before stated, that he did everything in his power to stop the train when he realized that the deceased was in danger, or about to get in danger, is alone controverted by the statement of the witness Faidley, who was standing at the store door, in front of which deceased was struck, watching at the same time the deceased and the train approaching, directly in line of his vision; and he undertakes to say that the engine was not reversed, the air put on, nor the track sanded until deceased was struck. In that position it was impossible for Faidley to know from observation what was being done on the engine, and the only grounds upon which he could claim to be an expert were that years ago, before air brakes were used on a train like this, he worked five years as brakeman on a freight train and three as fireman. Moreover, circumstances to which he and others testify do not bear out this theory of his. The deceased was struck in front of the store door, where Faidley was standing, and carried a few feet, only, on the cowcatcher, when he rolled off to the right. Only 5 or 6 of the 14 cars in the train passed Faidley before the train stopped; and when it stopped, he, as well as others, walked over from the depot platform on the narrow platform between the freight cars, and looked down at deceased, lying but a few feet nearer the engine than they were; and, although the train was to stop

to put off passengers, the passenger coach was standing, when it stopped, south of the platform, which shows unmistakably that the efforts made by the engineman to stop the train were made before it struck deceased, notwithstanding the opinion of the witness Faidley to the contrary.

It is claimed, however, that defendant's witness, Peters, says that the train did not stop "a bit quicker than it would have stopped anyhow"; that, if the deceased had reached the point of collision "a second earlier or the train a second later," the accident would not have happened. Conceding that the witness is correctly quoted, what he says is to be interpreted in the light of all that he says, and it is to be borne in mind that he was testifying from the point of view of himself and eight or nine other witnesses, that the deceased approached the track diagonally from his surrey, bent on crossing it before the train reached him; and therefore the witness meant that, if the deceased had been a second earlier, or the train a second later, he would have accomplished his purpose. What the witness says is directly opposed to the statement of the witness Faidley that the efforts to stop the train were made after the deceased was struck, and corroborates the engineman in his statement that he was doing all he could to stop it.

In no view that can be taken, even of the plaintiff's evidence alone, aided by just inferences to be drawn therefrom, can it be reasonably claimed that the deceased should have been regarded by the engineman as being in a position of danger, until he stepped over between the rails, and continued to walk down the track. Then the train was not over 30 yards from him, and, according to the witness Faidley, claiming experience in such matters, it required 50 yards by sanding the track to stop it.

Stress is laid upon the statements of Barrett and Denton, expert enginemen, introduced in rebuttal by the plaintiff, as to what effect upon the deceased the sounding of the whistle would have had. The sum and substance of what the second-named witness says is in answer to the question: "In your opinion, if the whistle had been sounded, what would have been the result?" and his answer is: "Well, sir, I could not say. I am no prophet, but it naturally would call the man's attention, if he is not deaf and dumb, and would cause him to step off to one side or the other. I don't know what would have been the circumstances in this case. That is a very natural thing to suppose. That is what the whistle is there for."

The witness Barrett, after stating that his experience had been that when a person was on the track, and the whistle was sounded, he would jump to one side of the track, was asked: "Do you think that on that occasion, under those circumstances, if the whistle had been sounded, the man would have jumped