sel for the land owners announced to the commissioners and others that said husband "had prepared dinner for everybody and everybody was invited to take dinner at his house." The question then arose as to whether they would begin work before or after dinner. Counsel for the land owners suggested that they do their work first and eat dinner afterwards. The said husband objected that the dinner would get cold and that he didn't like to keep the women folks waiting. Senior counsel for the power company then suggested that they go and eat dinner first, which was done. The above statement has been taken almost verbatim from the testimony of the senior counsel for the land owners.

The senior counsel for the power company also testified in the case and does not controvert the above. He, however, adds to his statement on the subject the following: "I raised no objection to it at that time. I had no objection to raise. I did not know that the Supreme Court of the State had put its ban upon that kind of procedure. I had confidence in the commissioners, that they would not be influenced by it although we all know that it is a matter of humanity that cannot be helped, I care not how fair or honorable the man may be, that a man cannot get up from a table and go out and put a value upon the land of his host with his host's cigar in his mouth, and do it in such a way as to do absolute justice to all parties concerned. The case which has settled this as a law of the State of Virginia was at that time, so far as I know, in the press, and the first I knew about this case was in the advance sheets of those reports which I had not seen and of which decision I did not know and am willing to put into the record regardless of how it may have affected me with the commissioners, had I known that this was the view that the Supreme Court took of such matters I would have made the objection and given the opportunity for these commissioners to pass upon this under other circumstances than those under which they did."

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

The first, third and fourth exceptions above noted will be considered in their order as stated below.

1. In regard to the first (1st) exception, as these causes have to go back to the court below for further proceedings and the same question will probably arise concerning what, if any, instructions the trial court, is asked by either party, should give to new commissioners in such proceedings, we deem it proper to say that we think the statute on the subject (sub., sec. 6 of sec. 1105-f, Pollard's Code), is sufficiently specific as to what were the duties of the commissioners in the premises, and that if the orders of court, appointing the commissioners substantially contain instructions as to what all of such duties are as prescribed by statute, as they did in the instant case, that is sufficient; and the trial court may, and properly should, refuse to give any further instructions defining what such duties are. A contrary rule would tend to the presentation to trial courts of lengthy commentaries on the statute law involved and the urging of same upon the court for its adoption, and the simple and plain meaning of the statute might be obscured rather than elucidated thereby, and the result might be confusing to the commissioners instead of being helpful to them in informing them of their duties. Not so however as to the manner in which they should discharge their statutory duties. We think it would be helpful to the commissioners and greatly tend to the proper discharge of their duties if the courts appointing them would, on their own motion, or upon request of any party to the case, instruct the commissioners as to what character of testimony and argument or statements of counsel are admissible or inadmissible before them; and caution them not to discuss the case in any aspect of it with any one other than among themselves or allow it to be discussed in their presence, except when together assembled for and engaged in the discharge of their duties in public as commissioners as the

statute provides.

These commissioners practically discharge the duties of juries, as we had occasion to remark in effect in the case of New River, etc., Railway Co. v. Honaker, supra, and every precaution should be taken by such commissioners and by the courts to preserve public confidence in their findings. Neither they, however honorable men they may be, by careless and thoughtless disregard of the proprieties, nor others, whether acting designedly or with the purest of motives, should be allowed to so conduct themselves in any way as to cast suspicion upon the intergity of the commission or upon its decisions.

2. In regard to the third (3rd) exception aforesaid: While we are satisfied that there was no private communication between counsel for the land owners and any of the commissioners which was intended to improperly influence the latter or which did so, yet we think the practice of counsel in a case notifying the commissioners of their appointment in condemnation proceedings should be discontinued. It is a position in which counsel should not be put or put themselves. It is a difficult position to fill with absolute absence of some expression which may have or seem to have the ulterior object or effect of inducing a special feeling of favor on the part of the commissioner communicated with toward counsel having the communication and his client, especially when the communication is verbal, and only in a less degree when it is in writing. The notice of their appointment and of the date fixed for the view, should be communicated to the commissioners, (or to the minimum number authorized to act, if only such number is desired to act), by the clerk or other disinterested person, as the order of court may especially direct by consent of all parties to the case, or in the absence of such consent by a certified copy of the order being delivered to the commissioners by the sheriff of the county or sheriff or sergeant of the city in the court of which the proceedings are had.

3. In regard to the fourth (4th) exception aforesaid: The causes before us fall within the rule on the subject laid down in the case of New River, &c. Railway Co. v. Honaker, supra, unless it can be distinguished on the ground that the entertainment of the commissioners in the instant cases was by the free and untrammelled consent of all parties, by counsel.

There are but few things which may not be done in civil causes by consent of all parties who are affected.

If prior to the possibility of any information of it having reached any of the commissioners, the land owners or their counsel had conferred with the power company or its counsel on the subject, and the power company, in person or by counsel, had consented to the entertainment being given, a different case would be presented, to which the rule aforesaid might not apply. But for reasons of public policy which rise above all personal considerations, or considerations of the effect in particular cases, we have no disposition to relax in any degree the rule referred to as heretofore established. And it is manifest that in any case where information has come to commissioners in condemnation proceedings that entertainment has been provided for them by parties to the proceedings before counsel for other parties thereto have been informed of the proposed entertainment and their consent thereto is asked, the latter and their client are not in a position to refuse such consent untrammelled. If they refuse consent they are taking an attitude which would inevitably be offensive to the commissioners, because indirectly reflecting upon their integrity. The risk of injurious result is obvious. And since the evidence in the proceedings before us tends to show that the situation predicated in the next preceding sentence existed when said consent was asked as aforesaid, we do not think that the rule referred to should be relaxed in the instant cause, and we feel that to do so would be to establish an unwise precedent. It is true that while counsel for the power company urge this position in the petition and in

their brief, they did not take it at the time consent was asked to the proposed entertainment. But counsel was given but scant time for reflection and besides did not then know of the then recent ruling of the court aforesaid, and it seems to us that it would not be just or right to apply any rule of estoppel or waiver of right to such a case.

For the foregoing reasons we are constrained to the opinion that there was error in the action of the trial court in overruling the fourth exception aforesaid to the report of the commissioners for which these causes must be reversed. The judgments complained of will therefore be set aside and annulled and these causes remanded to the court below for further proceedings to be had therein not in conflict with the views expressed in this opinion.

Reversed.

WALTERS v. NORFOLK & WESTERN RAILWAY COMPANY.

(Richmond, November 15, 1917.)

1. RAILROADS-Negligence-Injury to Passenger-Res Ipsa Loquitur. -The doctrine of res ipsa loquitur applies when an accident happens to a passenger who is himself without fault, and is caused by a defect in any of those things which the carrier is bound to supply, or is the result of the failure in any respect of the carrier's means of transportation, or the conduct of its servants in connection therewith. Under such circumstances a presumption of negligence arises against the carrier for injuries thus caused, and in the absence of proof on the part of the carrier to rebut this presumption, it becomes conclusive. On the other hand, where the cause of the injury is plainly outside of the control of the carrier, and has no connection with the machinery and appliances of transportation or the negligence of its servants in operating such instruments of transportation, such accident raises no presumption of negligence on the part of the carrier, and the burden of showing such negligence is upon the party who avers it.

2. IDEM-Injury to Passenger-Invalid-Case at Bar.-Where a woman passenger, who was a paralytic, weighed about 200 pounds, and was confined to an invalid's chair, while being lifted from the train in her chair, at a station, by her husband and his friends, with her acquiescence, was allowed to fall from her chair, because of the alleged negligence of the baggage master in lifting the rear wheel of the chair as it went out of the door of the baggage car: Held, that the question of the negligence of the baggage master was properly referred to the jury, who could not, under the evidence have properly found any other verdict than for the defendant.