in the bridge. As has already been shown, the statute makes the county court an insurer of the safety of persons using its highways and bridges, in the absence of contributory negligence or other intervening cause. Therefore, only the evidence tending to prove negligence on the part of the driver of the engine as the proximate cause of the injury, need be considered.

within the evil the statute was designed to correct, if the common law gave a right of action in such cases. Though there are some decisions in which municipal corporations have been held liable to their employés for negligent injury, upon common-law principles, the general rule is to the contrary. Labatt, Master & Serv. § 847; Shearm. & Redf. Neg. 253, 255. Thus, an employé of a municipal corporation, engaged in the operation of a This ground of defense is that, as the enstone crusher to prepare materials for con- gine was passing from the bridge onto the structing and repairing highways, injured by roadway, it was driven so nearly to the east a defect in the machine, was denied right of side of the bridge that the rim of the rear recovery. Colwell v. Waterbury, 74 Conn. wheel struck the diagonal, constituting part 568, 51 Atl. 530, 57 L. R. A. 218. So an em- of the truss, and pressed it over so as to deployé injured by a vicious horse furnished prive it of its efficacy as a support to the him by a quasi municipal corporation, en- bridge. To sustain this theory of defense, the gaged in work done for the state, was strength of the bridge is relied upon. Evidenied right of recovery. Backer v. Park dence was adduced tending to prove that Com'rs, 66 Ill. App. 507. To the same gener- it had for years carried vehicles similar to al effect, see Pettingell v. Chelsea, 161 Mass. the one under which it went down. One 368, 37 N. E. 380, 24 L. R. A. 426; Hill v. Bos- of these was an engine weighing nine tons ton, 122 Mass. 344, 23 Am. Rep. 332; and a separator five tons. The engine and Taggart v. Fall River, 170 Mass. 325, crusher under which it gave way had passed 49 N. E. 622. General principles stated over it the preceding day. It did not give in Mendel v. Wheeling, 28 W. Va. 233, way until after the front wheels of the 57 Am. Rep. 664, tend to the same con- engine had passed off of it and onto the clusion. See, also, Nichol v. Water Co., ground, nor while the combined weight of 53 W. Va. 348, 44 S. E. 290. Principles the entire engine and crusher were upon

declared in Shaw v. City of Charleston, 57 W. Va. 433, 50 S. E. 527, 4 Ann. Cas. 515, Brown's Adm'r v. Guyandotte, 34 W. Va. 299, 12 S. E. 707, 11 L. R. A. 121, Gibson v. Huntington, 38 W. Va. 177, 18 S. E. 447, 22 L. R. A. 561, 45 Am. St. Rep. 853, and Bartlett v. Clarksburg, 45 W. Va. 393, 31 S. E. 918, 43 L. R. A. 295, 72 Am. St. Rep. 817, would deny recovery in such cases, under the principles of the common law, absolving municipal corporations from liability for injuries resulting from negligence on their part in the exercise of their governmental and discretionary powers. A servant of a county court injured by a defect in a highway, while in its service, cannot be excepted from the general terms of the statute, therefore, on the theory that his case was not within the mischief the Legislature intended to remedy. Having no right of action against his employer for negligent injury, he was in the same situation as that of a traveler injured in the same way. In other words, it cannot be assumed that the Legislature intended to except him on the ground that the common law afforded him a remedy, for he had no such remedy at common law. The result of this conclusion accords with that found in Vickers v. Cloud County, 59 Kan. 86, 52 Pac. 73, in which a workman, employed by the county and injured by the falling of a bridge, was declared to be within the protection of a statute in all substantial respects like the one here under consideration.

Under this construction of the statute, it becomes unnecessary to devote any time to the consideration of the sufficiency of the

it, nor until the weight of the rear portion
of the engine was divided between the earth
and the bridge, nor until the weight became
lighter than it had been at any other time
during the passage. The woodwork was
unbroken, and very slight defects, if any,
were found in the iron. There is some con-
troversy as to whether any of the iron work
was broken, although some of it was admit-
tedly bent. Though the bridge had been
erected in 1891 and was about 13 years old
at the time of the injury, it had been painted
several times and had not been seriously im-
paired by rust. There was evidence tending
to prove the passage had been made at an
unnecessarily rapid rate of speed, and under
unnecessarily heavy steam. The approach
to the bridge was downgrade, and although
the engine and crusher were equipped with
brakes they were evidently not used.
was the northeast part of the truss that
went down. The witness Golliday, standing
in the door of a mill on the west side of
the road, 30 or 40 yards distant, and looking
at the crusher and the engine, says he saw
"the lower side of the bridge go out and
the thing sink from sight," and again said,
"I saw between the engine and the crusher
this side go out and out of sight." By this
he evidently meant the east side of the truss.

It

In the argument are found calculations based upon evidence of marks on the boards which constituted the floor of the bridge and the ground at the end of it, tending to show probability that the rim of the hind wheel struck the truss. These calculations involve the width of the bridge between the trusses and the length of the boards used for the

sunk to a certain point, the hind wheels of less improbable that the accident was due the engine and those of the crusher slipped to weight upon it. The uncontradicted testitoward the east leaving marks on the boards. mony of Golliday, the only eyewitness who Neither the distance of these marks from undertook to describe the character of the the ends of the boards nor from the inside fall, showing the careening of the truss, folof the truss was measured. The witness lowed by subsidence of that side of the spoke in general terms. He says the scar on bridge, tends directly to prove the theory of the board he noticed showed the wheel had the defense. The slight testimony above decommenced to slide at a point four or five tailed, tending to prove defectiveness of mafeet from the side of the bridge. On cross-terials and workmanship and the breaking of examination, he said he meant four and a some portions of the iron, might be conhalf or five feet from the ends of the sidered as overcome by the tests of suffiboards. The boards extended beyond the ciency and safety already referred to. Upon truss. Counting the distance from the in- these considerations, I am inclined to the side of the truss, the wheels would have opinion that there is a preponderance of evistruck the one on the opposite side. Count- dence in favor of the defendant, sufficient to ing from the ends of the boards, it would sustain the action of the court upon the dehave missed it by the very narrow margin murrer, but my Associates are clearly of the of two or three inches. As to the distance opinion that there is no clear and decided the front wheels had gone beyond the end preponderance, and that the issue made by of the bridge onto the road, when the acci- the evidence was one proper for jury deterdent occurred, relied upon in these calcula-mination. As there is no difference of opintions, the evidence is equally uncertain and ion among us as to the law governing demurindefinite. Two of them give four to five feet, and the third one six to eight feet. Calculations based upon the testimony of another one as to the position of the hind wheels on the bridge makes it two feet eight inches to four feet eight inches.

In opposition to this testimony, slight evidence of defects in the bridge was adduced. Witness Viand says he helped to construct the bridge, and that a brace, put in near the point at which it broke down, was defective in this, that it had but one rivet at a point

rers to evidence, there is no occasion for inquiry as to legal principles. When the evidence clearly and decidedly preponderates in favor of the demurrant, all agree the demurrer should be sustained. We differ only as to the existence of such a preponderance in the evidence adduced in this case.

As in the opinion of a majority of the members of the court, the case should have been submitted to the jury, but for interposition of the demurrer, the judgment will be reversed, and a judgment rendered here for the amount of the conditional verdict.

June 24, 1913.)

(72 W. Va. 643)

(Syllabus by the Court.)

at which it should have had two. Under an erroneous direction from the superintendent, one of the rivet holes was cut out entirely and the other was partially cut, but the brace was put in nevertheless. He further says CAVENDISH ▼. BLUME COAL & COKE some of the bridge irons were pretty badly CO. et al. rusted. Witness Kisner says some of the (Supreme Court of Appeals of West Virginia. irons were partly rusted in two where they broke, and that the bottom cord was broken a little way from the northeast abutment. Witness Clark also says some of the irons were pretty rusty. The effect of Viand's testimony was considerably impaired by his admissions on cross-examination, and there was testimony tending to prove the brace he spoke of as having been defective was still intact after the bridge had fallen, and, besides, this brace was probably one that sus-inally a part, to another, is not entitled to a tained very little, if any, weight.

As has been stated, the calculations relied upon as conclusively proving contact of the rear wheel of the engine with the truss of the bridge do not possess the probative force claimed for them, because it is based upon uncertain data. However, it does conclusively show the wheel must have been very close to the truss, and thus raises a probability of contact. The tests of sufficiency and safety borne by the bridge for many years, the day before the accident and on the very day thereof, renders it more or

1. SCHOOLS AND SCHOOL DISTRICTS (§ 65*)— SALE OF SCHOOL LOT-RIGHTS OF ORIGINAL OWNER.

A lot in a village though not incorporated conveyed to a board of education by absolute deed with general warranty is within the exception of section 33, c. 45, Code 1899 (Code 1906, c. 45, § 33), and the grantor of such lot, who has previously sold and conveyed his adjoining lands, of which such lot was orig

cancellation of the deed for such lot from such board to the same grantee, and to a reconveyance thereof to him by virtue of said statute.

[Ed. Note.-For_other_cases, see Schools and School Districts, Cent. Dig. §§ 162-167; Dec. Dig. § 65.*]

(Additional Syllabus by Editorial Staff.) 2. WORDS AND PHRASES-"VILLAGE.”

A "village" is defined as an assemblage of houses in the country less than a town and inhabited chiefly by farmers and other labor

ing people.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 8, pp. 7321-7324.]

Appeal from Circuit Court, Fayette County. | of $200.00, paid by respondents, and on which Bill by J. F. Cavendish against the Board exchanged lot said board has erected a school of Education of the District of Nuttall and building costing $3,000.00. others. Decree for defendants, and plaintiff appeals. Affirmed.

Wyatt & Graham, of Huntington, for appellant. Dillon & Nuckolls, of Fayetteville, for appellees.

After so responding to the matter of the bill, it is alleged as ground for the affirmative relief prayed for, that admitting the general right of reconveyance given by said statute, plaintiff, by deed of March 1, 1902, . had conveyed to Blume Coal & Coke ComMILLER, J. Plaintiff sues for cancella-pany all his adjoining lands, and out of tion of a deed from the Board of Education which said school house lot was taken, and of Nuttall District, Fayette County, to Blume other lands, and had thereby also relinquishCoal & Coke Company, a co-partnership, dat-ed, sold and conveyed to said coal company all reversionary rights and interests therein. ed April 13, 1908, in so far as it relates to a school house lot at the village of Lookout, The prayer of said answer was that it may and for a reconveyance thereof to him by be treated as a cross bill against plaintiff, said board, by virtue of section 33, chapter 45, and that he be required to convey to respondCode 1899 (Code 1906, c. 45, § 33), in force at ents his interest in said lot upon the paythe time the deeds now to be referred to ment to him of $10.00 tendered therefor, as per contract in said deed. were made.

This lot as alleged had been previously conveyed by plaintiff to said board of education, by two deeds; the first calling for about a half acre, was lost and never recorded, but the bill alleges it was made in 188-; the second, dated May 1, 1897, calling for a lot adjoining the first, is described by metes and bounds as a lot 4 poles wide by 111⁄2 poles in length, and recorded July 25, 1898. By Act of 1905, c. 70, said statute was amended, and as now contained in chapter 45, Code 1906, no such right of reconveyance is preserved.

In the deed sought to have cancelled this lot, covered by both deeds, is described as containing ".69 of an acre." The consideration recited in the second deed is ten dollars paid; it is absolute in terms, without reservation, and with covenants of general warranty. The bill alleges the consideration for the first deed was one dollar, and it is not alleged or pretended that it contained any terms of defeasance or reservation. The answer of Blume Coal & Coke Company, and of the Board of Education, deny this and affirm that it was "possibly as much as $25.00." If the fact is material, and we do not think it is, plaintiff has not made out a case of nominal consideration only. But for the right alleged to be conferred by the statute no ground for relief is alleged or made to appear.

Plaintiff replied generally to said answer, but made no answer to the affirmative matters thereof; and the depositions taken by him in relation thereto, were excepted to, and in the final decree appealed from said exceptions, though not specifically passed upon, are noted, and the decree was that plaintiff be denied relief, and his bill dismissed, but that the affirmative relief prayed for by the Blume Coal & Coke Company be granted, and the decree so provided.

The provision of the deed relied on, a copy of which is exhibited with the bill, is as follows: "The said J. F. Cavendish and wife covenant with the parties of the second part that they have heretofore sold to various parties certain small tracts or lots of land adjoining to and lying near the property hereby conveyed, which said parties have not paid the said J.. F. Cavendish all the purchase money due thereon, and the said J. F. Cavendish hereby covenants and agrees with the said parties of the second part that in the event the said parties fail to pay for the said lots or parcels of land, and the title thereto reverts back to the said J. F. Cavendish, or if for any reason the said J. F. Cavendish cures the title to said tracts or lots so sold by them, as aforesaid, then, and in that event, he agrees to grant and convey the said tracts of land, or so much of them as he may secure title thereto, to the said parties of the second part, the said parties of the second part to pay the said J. F. Cavendish the same price, with accrued interest thereon, which had been agreed to be paid by the parties to whom J. F. Cavendish sold."

Said section 33, of chapter 45, Code 1899, excepts from the provision giving right of reconveyance to a grantor, lots situated within any village, town or city. The answer of defendants, Blume Coal & Coke Company, deny that said lot is not situated within any city, town, or village; on the contrary they allege that it is situated within the village of Lookout, and by the terms of the statute expressly excepted from the pro-a "village," as on the evidence we think it vision giving right of reconveyance. They also deny the said lot has been abandoned, and allege that it was simply exchanged for a larger and more commodious lot in the

A number of interesting questions are presented and argued by counsel; but if said lot at the time of the suit was situated in

was, then, by the very terms of the statute no right of reconveyance existed, and relief was rightly denied plaintiff, and his bill was properly dismissed, and we need not consider any

ordinary acceptation, as meaning an aggregation of houses and inhabitants more or less compact." The record of this case shows that plaintiff himself opened up coal mines in or near the village of Lookout, developing his lands in that vicinity, and by his efforts the village was partially built up. These lands and coal properties he sold and conveyed to the Blume Coal & Coke Company. If he should succeed in this suit on his own theory, he would defeat one of the very purposes of the statute which he invokes, as interpreted by this court in the case above referred to. According to the evidence there is located in the immediate locality of the original village of Lookout some twelve or fourteen houses, including a church, blacksmith shop, and three stores, inhabited by seventy five or eighty people; and the new school house erected near by serves a population of five or six hundred people, living in houses near to and really constituting parts of said village. These houses are located near cross roads, some on both sides of the James River and Kanawha Turnpike, an old State road. The town or village is a mining town it is true, and many of the houses belong to and are located on the coal company's lands, but we think this is one of the class of vil. lages covered by the statute, and on this ground that plaintiff has no right to a reconveyance of the property. Moreover, having conveyed his farm and property to the coal company, it may be questionable, whether his conveyance, regardless of its special provision respecting other lots, did not carry with it the right of reconveyance given by the statute. But we need not and do not decide this question.

[2] But it is contended that as chapter 47, of the Code, providing for the incorporation of cities, towns and villages, was in force at the time section 33, chapter 45, was enacted, and on the theory that said section was enacted to encourage persons in the country to donate land for school house sites, the word "village," employed in connection with the words "cities" and "towns," should be construed to mean incorporated villages. Even if that may have been one of the purposes of the statute, we do not think it was the only or main purpose; and if it was, it failed in this case, for the evidence shows that the lot was not a gift or donation, but that a full money consideration was paid for it. This court, in Carper v. Cook, 39 W. Va. 351, 19 S. E. 381, said, respecting this statute: "This is a concession of the law to those living in farming communities, that a small portion of a farm may not be taken for school purposes and then be allowed to pass into the hands of a stranger, to the damage of the residue of the land; and the grantor must make his election promptly, before the rights of third parties attach, by a re-payment of the purchase-money and a demand for a re-conveyance. If such demand is refused, even though made in time and in a proper case, the right could not be enforced by an action of ejectment." The word is not defined by the statute. The general rule in the construction of statutes is that unless a different meaning is given or plainly and necessarily implied from the context, the words of a statute are to be given their usual and ordinary meaning. Chapters 45 and 47 of the Code do not relate to the same subject; the first relates to education; the lat ter to the incorporation of cities, towns and villages. They are not in pari materia. Webster defines village, "an assemblage of houses in the country, less than a town or city, and inhabited chiefly by farmers and other laboring people," and so far as we have been referred to or have found other authority on the subject, judicial or otherwise, this definition is universally recognized as the correct one. In confirmation we refer to 8 Words and Phrases, 7321, 7322. In Toledo, W. & W. Ry. Co. v. Spangler, 71 Ill. 568, 569, one of the cases referred to, it is said: "A place where there is a station house, a ware-ed. On such a cross answer or bill the relief house, a store, a blacksmith shop, a postoffice, and five or six dwelling houses, whether they are situated upon regularly laid out streets and alleys or not, comes fully up to the requirements of a village, for the purpose of excusing a railroad company from fencing its track within the limits thereof." In Territory v. Stewart, 1 Wash. 98, 23 Pac. 405, 406, 8 L. R. A. 106, another case, it is said: Villages and towns, as used in Act Wash. T. Feb. 2, 1888 (Acts 1887-88, c. 126) authorizing the incorporation of towns and villages, and not defining the meaning of the

[1] But what about the affirmative relief decreed Blume Coal & Coke Company? Strictly speaking we question whether such relief was well grounded on the theory of the cross answer that the special provision of the deed from plaintiff to the coal company, above quoted, gave that right. But we are clearly of the opinion on facts alleged and admitted, that a claim and decree for affirmative relief, based on the fact of the lost deed, alleged and proven, and right of restoration thereof, would have been well found

would have been substantially the same as
that decreed on the theory of the cross an-
Wade v. Greenwood, 2 Rob.
swer filed.
Plaintiff was
(Va.) 474, 40 Am. Dec. 759.
requested, before suit, to join in the convey-
ance of the board of education to the coal
company to restore that deed, and complete
As no costs are
the record, but declined.
decreed against him on the cross answer, or
in relation to the execution of the deed de-
creed to be executed by him, or on his de-
fault by a commissioner appointed for the
purpose, and he is not injuriously affected or

are not disposed to reverse it, for any error | special property therein was irrelevant and therein, in decreeing such cross relief. prejudicial. For these reasons the decree below will be affirmed.

(Supreme Court of South Carolina. July 8, plaintiff; same being irrelevant under the allegation of ownership.

"(5) That his honor, Judge Memminger, erred in admitting any evidence, to wit, the chattel mortgage and the verbal testimony of witnesses, as to the right to the immediate possession of the property claimed by the plaintiff, the allegation, and of which the plaintiff is entitled to the immediate posses§sion,' being a conclusion of law merely without stating the facts with respect to said right; his honor should have excluded all said testimony as irrelevant.