Payne v. Mason ( 1924 )

Sims, P.,

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

The case is near the border line between the two classes of cases which are mentioned in Davis v. Bowman, 138 Va. 108, 121 S. E. 506, and is ruled by the latter case and those of the same class therein mentioned.

As said in the Bowman Case, we say in this: “We have had occasion recently to pass upon many similar cases. The pertinent principles are well settled. After a most careful consideration of the evidence, we are of opinion that we cannot say as a matter of law that the plaintiff was guilty of contributory negligence; * * the instant ease is controlled by the line of cases typified by Seaboard Air Line Ry. v. Abernathy, 121 Va. 173, 92 S. E. 913, and Payne, Director General, v. Brown, 133 Va. 222, 112 S. E. 833, and does not fall -within the influence of Washington & Old Dominion Ry. Co. v. Zell, 118 Va. 755, 88 S. E. 309, and other cases of that class.”

We will add. that we find the evidence in the instant case, relied on by the defendant to support the contention that it is a case of negligence per se on the part of the plaintiff’s intestate, to be much weaker than in the Bowman Case.

The case will be affirmed.

Affirmed.