Recovery of price paid for land, see Vendor and
Purchaser, §§ 335, 338.
MONEY RECEIVED.
Recovery of price paid for land, see Vendor and
Purchaser, §§ 335, 338.
II. TRUSTS AND OTHER COMBINA-
TIONS IN RESTRAINT
IX. FORECLOSURE BY EXERCISE OF
POWER OF SALE.
§ 338. Where liens of unascertained amounts
exist prior to a trust deed, preventing a fair
sale, the foreclosure of the trust may be en-
joined until the same are removed.-Hart v.
Larkin (W. Va.) 331.
§ 338. Upon vacation motion to discharge an
injunction against a sale under a deed of trust,
because of prior liens, the judge cannot take
a bond as a substitute for one of such liens and
consider it discharged.-Hart v. Larkin (W.
Va.) 331.
§ 344. A trustee in a deed to secure the
payment of money may act without bond, un-
v. Larkin (W. Va.) 331.
Contracts, in restraint of trade, see Contracts, less required by grantor or a beneficiary.-Hart
§ 117.
$372. A mortgage not under seal conferred
no right of possession on persons claiming un-
Tenancy from month to month, see Landlord der a foreclosure sale of the land by the mort-
and Tenant, § 115.
MOOT QUESTIONS.
Certification of questions to Supreme Court as
dependent on existence of actual controversy,
see Courts, § 217.
Determination by courts, see Appeal and Error,
$ 781.
Of personal property in general, see Chattel
Mortgages.
Of trust property, see Trusts, § 206.
Parties to suit to charge debt on property mort-
gaged to secure bonds, see Equity, § 95.
IV. RIGHTS AND LIABILITIES OF
PARTIES.
gagee, but only a bare equity requiring inter-
vention of a court at their instance to charge
the land with the money loaned.-McFarland v.
Cornwell (N. C.) 454.
Election of other remedies, see Election of Rem-
edies, § 2.
Nature and form of action, whether ejectment
or to redeem from mortgage foreclosure sale,
see Action, § 25.
§ 614. Under Revisal 1905, § 391, subsec. 4,
if a mortgagor's heirs choose to sue in equity
to redeem land sold under foreclosure of the
mortgage and in possession of a defendant claim-
ing through the purchaser, the statute would
not bar them under 10 years from the date when
their cause of action accrued.-McFarland v.
Cornwell (N. C.) 454.
187. A mortgage not under seal not being
a common-law mortgage, the mortgagor and his
heirs have a legal right to possession and can
recover at any time, notwithstanding the in- See Parent and Child.
strument, till barred by lapse of time.--McFar-
land v. Cornwell (N. C.) 454.
§ 199. If a mortgagee occupies the premis-
es, especially a farm, he will be charged with
a fair rent, without regard to what he may
realize as profits.-Liskey v. Snyder (W. Va.)
§ 202. A mortgagee in possession may pro-
tect the property, and is entitled to be reim-
bursed for so doing.-Liskey v. Snyder (W.
Va.) 702.
$ 202. The value of reasonable repairs by
one in the position of a mortgagee in posses-
sion, who supposes himself to have acquired
absolute title, will be allowed upon subsequent
redemption.-Liskey v. Snyder (W. Va.) 702.
§ 203. The value of permanent improve-
ments by a mortgagee in possession, who sup-
For particular purposes or relief.
See Injunction, §§ 151, 157.
Affirmance on appeal or other proceeding for re-
view, see Appeal and Error, § 1126.
Continuance, see Criminal Law, § 603.
Direction of verdict, see Trial, §§ 168-170.
Dismissal of action or nonsuit, see Trial, §§ 159,
165.
New trial, see Criminal Law, §§ 953-958; New
Presentation of objections, for purpose of re-
Trial, §§ 110-165.
Relating to pleadings, see Pleading, § 355.
view, see Appeal and Error, § 237.
poses himself to have acquired absolute title, Evidence of, in civil actions, see Evidence, §
will be allowed upon subsequent redemption.-
Liskey v. Snyder (W. Va.) 702.
VL TRANSFER OF PROPERTY MORT-
GAGED OR OF EQUITY OF
REDEMPTION.
295. Where trust deed creditor buys the
trust property, and takes conveyance from his
debtor, his lien is not merged so as to make his
entire estate in the land subject to an interven-
ing lien.-Sullivan v. Saunders (W. Va.) 497.
§ 295. Where a trust deed creditor buys the
trust property, and takes a conveyance, the
trust deed lien will be kept alive as against an
intervening lien in favor of a grantee of such
purchaser, where no injustice is done.-Sullivan
v. Saunders (W. Va.) 497.
MOTOR VEHICLES.
On highways in general, see Highways, § 172.
On streets, contributory negligence, see Munic-
ipal Corporations, § 803.
On streets, liabilities for injuries, see Municipal
Corporations, § 705.
MUNICIPAL CORPORATIONS.
See Counties; Schools and School Districts, §§
42-159.
Mandamus to municipalities and municipal of-
ficers, see Mandamus, § 79.
Municipal courts, jurisdiction and procedure in
civil actions, see Courts, §§ 188-190.
Street railroads, see Street Railroads.
Water supply, see Waters and Water Courses,
$ 200.
I. CREATION, ALTERATION, EXIST-
ENCE, AND DISSOLUTION.
(C) Amendment, Repeal, or Forfeiture of
Charter, and Dissolution.
§ 48. Civ. Code 1902, §§ 1963, 2008, 2015,
2021, 2022, and Const. art. 8, § 1, held to ex-
tend existence of municipal corporations.-
Black v. Fishburne (S. C.) 681.
II. GOVERNMENTAL POWERS AND
FUNCTIONS IN GENERAL.
Delegation to municipalities of power to control
traffic in intoxicating liquors, see Intoxica-
ting Liquors, §§ 10, 11.
III. LEGISLATIVE CONTROL OF MU-
NICIPAL ACTS, RIGHTS, AND
LIABILITIES.
Of counties, see Counties, § 24.
IV. PROCEEDINGS OF COUNCIL OR
OTHER GOVERNING BODY.
(A) Meetings, Rules, and Proceedings in
General.
§ 90. Charter of city of Fairmont of 1899
(Laws 1899, p. 47, c. 11, § 13) held to require
majority of council to be present to constitute
a quorum, and not a majority of the whole
number for ordinary business, if the quorum be
present.-McMillin v. Neely (W. Va.) 635.
§ 94. Under Act 1901, p. 356, c. 147, § 4,
the recorder of the city of St. Mary's has a
right to vote when the council is sitting, in-
cluding a right to vote under section 13 to de-
cide an election contest.-Riggs v. Carroll (W.
Va.) 633.
(B) Ordinances and By-Laws in General.
Judicial notice, see Criminal Law, § 304.
Ordinances imposing license taxes, see Licenses,
§ 9.
Reasonableness of ordinances relating to sale of
intoxicating liquors, see Intoxicating Liquors,
$ 46.
§ 109. It is a sufficient compliance with a
city charter, requiring certain ordinances to be
recorded, to paste printed copies thereof on the
leaves of the book.-Hager v. Melton (W. Va.)
13.
§ 109. Held, that the provision of a city char-
ter, requiring record of an ordinance in a cer-
tain book, must be complied with before the or-
dinance can have any efficacy.-Hager v. Melton
(W. Va.) 13.
§ 110. Held, that the provision of a city char-
ter, requiring publication of an ordinance, must
be complied with before the ordinance can have
any efficacy.-Hager. v. Melton (W. Va.) 13.
§ 120. The court, in construing an ordinance
granting a franchise, must look to the whole
ordinance to ascertain the intention of the par-
ties as to a particular subject not specifically
and clearly provided for.-Vinton-Roanoke Wa-
ter Co. v. City of Roanoke (Va.) 835.
V. OFFICERS, AGENTS, AND EM-
PLOYÉS.
Mandamus to municipal officers, see Mandamus,
Of counties, see Counties. §§ 64, 74.
Venue of action against light and water board,
see Venue, § 11.
(A) Municipal Officers in General.
§ 138. The provision of the charter of the
city of Fairmont of 1899 (Laws 1899, p. 41,
Venue of action against light and water board,
see Venue, § 11.
181. Under act approved February 26, 1902
(23 St. at Large, p. 1050), and section 6 there-
of, the mayor and board of aldermen of a city
held not authorized to remove duly elected
members of the board of police commissioners,
or abolish the office in absence of statutory au-
thority, so that an ordinance abolishing the
board was not effective.-Hardy v. Reamer (S.
C.) 678.
§ 205. Municipal employé held not entitled to
recover unearned salary of an office which he
voluntarily resigned.-Hanson v. City of Rome
(Ga. App.) 552.
Of counties, see Counties, § 105.
Purchase of property at tax sale, see Taxation,
$ 679.
VII. CONTRACTS IN GENERAL.
For supplying water to municipality, see Wa-
Of counties, see Counties, 88 117–128.
ters and Water Courses, § 200.
IX. PUBLIC IMPROVEMENTS.
(C) Contracts.
§ 336. A single bid for municipal work, made
under due advertisement for bids, held to au-
thorize the city council to contract with the bid-
der.-Hager v. Melton (W. Va.) 13.
Compensation or damages for property taken
under power of eminent domain, see Eminent
Domain.
(E) Assessments for Benefits, and Special
Taxes.
§ 413. If, under a city charter silent as to
charges against street railways for paving, the
council imposes such a charge, held, that an
abutting owner is not entitled to an abatement
therefor from the amount with which he is
chargeable.-Hager v. Melton (W. Va.) 13.
413. City charter held to authorize the in-
clusion and apportionment of the cost of pav-
ing street intersections or crossings.-Hager v.
Melton (W. Va.) 13.
§ 456. City charter provision held to leave
it in the discretion of the council whether adja-
cent lots, fronting on the same street and owned
by the same person, should be assessed sepa-
rately.-Hager v. Melton (W. Va.) 13.
§ 519. City charter provision held to give a
lien for penalties as well as for special assess-
ments.-Hager v. Melton (W. Va.) 13.
(F) Enforcement of Assessments and Spe-
§ 587. In a suit to enjoin a sale for a street
improvement assessment, held, that the city, if
authorized to enforce its lien in equity, and if
the assessment was valid, might have a decree
enforcing the lien as upon a cross-bill, by pray-
ing such relief in its answer.-Hager v. Melton
(W. Va.) 13.
X. POLICE POWER AND REGULA-
TIONS.
Regulation of licenses and license taxes, see Li-
censes, §§ 6-9.
Regulation of traffic in intoxicating liquors, see
Intoxicating Liquors, §§ 10, 11.
(A) Delegation, Extent, and Exercise of
Power.
Power to impose license fees, see Licenses, § 6.
Reasonableness of ordinance regulating speed of
trains, see Railroads, § 236.
Regulation of imitations and substitutes for in-imate cause of injury to a driver caused by
toxicating liquors, see Intoxicating Liquors, 8
§ 631. A requirement of an ordinance as to
repairing the roofs of buildings with noninflam-
mable material held not to apply to the substi-
tution of a few new wooden shingles to stop
leaks.-Town of Seneca v. Cochran (S. C.) 288.
§ 639. Held not ground for quashing a sum-
mons for violation of an ordinance that it was a
printed form, with the name of the clerk print-
ed therein.-Venable v. City of Atlanta (Ga.
App.) 489.
$641. Const. art. 1, § 1, par. 5 (Civ. Code
1895. § 5702), entitling accused to a list of wit-
nesses, held not to apply to offenses against city
ordinances.-Venable v. City of Atlanta (Ga.
App.) 489.
§ 642. Findings of fact, supported by evi-
dence, on a prosecution for violation of a town
ordinance, are not subject to review.-Town of
Seneca v. Cochran (S. C.) 288.
$643. Punishment imposed for a violation
of a city ordinance is not legally excessive,
where it is within the limitations of the ordi-
nance.-Backus v. City of Atlanta (Ga. App.)
XI. USE AND REGULATION OF PUB-
LIC PLACES, PROPERTY,
AND WORKS.
(A) Streets and Other Public Ways.
Condemnation of street for other public use, see
Eminent Domain, § 47.
County roads, see Highways.
Injuries to persons on street by collision with
street cars, see Street Railroads, § 94.
Statutory, municipal, and official regulations as
to movement of trains across highways, see
Railroads, § 244.
$705. In an action for personal injuries
caused by a horse which plaintiff was holding
in a street becoming frightened at defendant's
automobile, defendant held not negligent in not
stopping his automobile until after passing the
horse.-Baugher v. Harman (Va.) 86.
is bound to take proper precautions to warn
the public of any danger occasioned thereby.-
Stanton v. City of Parkersburg (W. Va.) 514.
§ 800. Obstruction in a street held the prox-
contact of his vehicle therewith on the sudden
shying of his horse.-Rucker v. City of Hunt-
ington (W. Va.) 91.
§ 801. Sudden shying of a horse resulting
in injury to the driver, by bringing the vehicle
in contact with an obstruction in the street,
of Huntington (W. Va.) 91.
held to render the city liable.-Rucker v. City
§ 803. In an action for injuries caused by
the collision of an automobile with a street
show, an ordinance prescribing the duties of
owners and drivers of automobiles as to ani-
mals hitched to vehicles does not apply where
the injury to the automobile was caused by col-
lision with a tent in the show.-Great Cosmo-
politan Shows v. Petty (Ga. App.) 624.
§ 817. Where a water meter box upon a
sidewalk is kept alternately in a safe and a
dangerous condition for such a time that, if
its condition was always dangerous, notice of
the defect would be presumed, one injured
thereby need not show notice or knowledge on
the part of the city upon each recurrence of the
danger.-City of Rome v. Brooks (Ga. App.)
§ 817. Sudden shying held one of the ordi-
nary incidents of the driving of a reasonably
safe horse and raises no presumption of neg-
ligence against the driver.-Rucker v. City of
Huntington (W. Va.) 91.
§ 818. Evidence in an action for negligence
that defendant remedied the condition from which
the injury resulted is admissible when the facts
disclosed by the change are relevant to the
issue.-Great Cosmopolitan Shows v. Petty
(Ga. App.) 624.
$ 821. How long a defect in a street must
exist to charge the city with notice thereof is
a question for the jury.-City of Rome v.
Brooks (Ga. App.) 627.
§ 821. In an action against a city for an in-
jury to a traveler by a defect in a sidewalk,
evidence held to make the question of plaintiff's
contributory negligence one for the jury.-City
of Rome v. Brooks (Ga. App.) 627.
(D) Defects
Obstructions in
Drains, and Water Courses.
$838. A municipal corporation is liable for
injury resulting to abutting landowners from
the discharge of sewage into a stream.-Little
v. Town of Lenoir (N. C.) 337.
§ 845. Elements of damage in an action for
temporary injury to real property stated.-Mc-
Henry v. City of Parkersburg (W. Va.) 750.
§ 845. Evidence of the difference between the
value of property before and after injury by sur-
face water thrown thereon held inadmissible in
an action to recover temporary damages.-Mc-
Henry v. City of Parkersburg (W. Va.) 750.
(C) Defects or Obstructions in Streets and
Other Public Ways.
Highways in general, see Highways, §§ 197, 213.
$ 845. A property owner held entitled to re-
cover temporary, but not permanent, damages
$755. Under Code 1899, c. 43, § 53 (Code for occasional overflow by surface water col-
1906, § 1444) the liability of a city for injuries lected in the grading and sewering of city streets.
sustained by its public streets and sidewalks-McHenry v. City of Parkersburg (W. Va.) 750.
being out of repair or so obstructed as to make
it dangerous for travel thereon in an ordinary
manner is absolute.-Stanton v. City of Parkers-
burg (W. Va.) 514.
§ 794. In case of necessity, a city or town
may permit a temporary obstruction of its
public streets or sidewalks, but in such case it
For cases in Dec. Dig. & Amer. Digs. 1907 to date
leaves in doubt the question of injury to abut-
$846. Where the evidence is conflicting and
ting owners from the discharge of sewage into
a stream, it is proper to refuse an injunction
against the construction of the sewer and leave
plaintiffs to their remedy in damages.-Little v.
Town of Lenoir (N. C.) 337.
& Indexes see same topic & section (§) NUMBER
(E) Condition or Use of Public Buildings
and Other Property.
$852. Right of action for injury from in-
sufficiently insulated electric wires held not to
depend on contractual relation of the parties.
-City of Danville v. Thornton (Va.) 839.
§ 857. The declaration, in an action for in-
jury for insufficiently insulated electric wires,
held to show plaintiff's lawful presence at the
place.-City of Danville v. Thornton (Va.) 839.
XIII. FISCAL MANAGEMENT, PUB-
LIC DEBT, SECURITIES, AND
TAXATION.
Of counties, see Counties, §§ 171-194.
(A) Power to Incur Indebtedness and Ex-
§ 867. A contract by city authorities to im-
§ 980. Deposit of a delinquent list of city
tax lands, unattested by the county clerk, under
Parkersburg city charter, held not to make the
list a part of the record of the clerk's office.-
Ritchie Lumber Co. v. Nutter (W. Va.) 646.
§ 980. Failure of a city tax collector to re-
turn the list within the time prescribed held an
irregularity cured by Code 1899, c. 31, § 25
(Code 1906, § 884).-Ritchie Lumber Co. v.
Nutter (W. Va.) 646.
§ 980. Under Parkersburg city charter, the
recording and attestation of the delinquent list
of lands assessed for city taxes is essential to
the making of the list a record in the clerk's
office.-Ritchie Lumber Co. v. Nutter (W. Va.)
Against counties, see Counties, §§ 208, 213.
MUNICIPAL COURTS.
prove and extend its water plant and sewer
system is for a public necessity, and the indebt-
edness incurred therefor is valid without being
authorized by a popular vote unless required by See Courts, §§ 188-190.
some charter or statutory provision under Re-
visal 1908, § 2916 (6).-Bradshaw v. City of
High Point (N. C.) 601.
(C) Bonds and Other Securities, and Sink-
ing Funds.
§ 907. A bill authorizing a city to issue bonds
not exceeding a certain amount for city im-
provements held not invalid for failure to desig-
nate the particular amount, since such amount
might not have been required.-Tyson v. City
of Salisbury (N. C.) 532.
§ 913. Municipal authorities are empowered
to issue bonds to fund a valid debt.-Bradshaw
v. City of High Point (N. C.) 601.
§ 918. Where an act authorizing the issue of
bonds by a city referred the date of the ma-
turity of the bonds to the determination of the
board of aldermen, it was not necessary that
such matter should be stated in the call for
or notice of election.-Tyson v. City of Salis-
bury (N. C.) 532.
§ 918. Under Priv. Laws 1907, p. 91, c. 19,
Const. art. 8, § 4, and Laws 1909, p. 468, c. 395,
a city held authorized to issue bonds for rais-
ing funds to pay for extending and improving
its sewer and water system. Bradshaw v.
City of High Point (N. C.) 601.
§ 925. Under Civ. Code 1902, §§ 1963, 2008,
2015, 2021, 2022, and Const. art. 8, § 1, held,
that municipal corporations could issue bonds
maturing beyond their corporate life under
their charters, and the surrender of their spe-
cial charter and reincorporation under the gen-
eral laws not affecting their validity, even if
actually issued after incorporation under the
general law.-Black v. Fishburne (S. C.) 681.
§ 929. City bonds held not "issued" so as to
be invalid because issued before a sinking fund
was created, even if Const. art. 8, § 7, required
the sinking fund to be created before the
bonds could be legally issued.-Black v. Fish-
burne (S. C.) 681.
(D) Taxes and Other Revenue, and Ap-
plication Thereof.
Of counties, see Counties, §§ 192, 194.
§ 956. The city of Richmond has plenary
power under its charter and under Code 1904,
§1043, to make levies on all property and sub-
jects assessed with state taxes against persons
residing therein.-Myers v. City of Richmond
(Va.) 826.
8980. Under Code 1899, c. 30, § 24 (Code
1906, § 846), and Parkersburg city charter, it is
essential to the validity of a tax deed that the
delinquent list was returned to the clerk of
the county court before sale and recorded.-
Ritchie Lumber Co. v. Nutter (W. Va.) 646.
MUTUAL BENEFIT INSURANCE.
See Insurance, §§ 750, 755.
MUTUAL COMBAT.
Homicide committed in mutual combat, see
Homicide, § 63.
Of obligation of contract, see Contracts, § 10.
Of subscription agreement, see Subscriptions,
§ 1.
Filing names of brands of fertilizers, see Agri-
culture, § 7.
Jury lists, see Jury, § 62.
NAVIGABLE WATERS.
Nonnavigable waters, see Waters and Water
Courses.
See Intoxicating Liquors, §§ 10, 11, 45, 46, 55,
74, 91, 122.
Causing death, see Death, §§ 17-60.
By particular classes of persons.
See Carriers, §§ 91, 105, 110-137, 156–165, 280-
321, 356-384; Municipal Corporations, $$
755-857; Railroads, §§ 222, 257, 264, 278,
305-351, 358-401, 419-443, 453-481; Street
Railroads, § 94.
Children, see Parent and Child, § 13.
Creditors, as release of sureties, see Principal
and Surety, § 123.
Electric light or power companies, see Electric-
ity. §§ 14-19.
Employers, see Master and Servant, §§ 86-
2972.
Employés, liability for injuries to third persons,
see Master and Servant, §§ 300-332.
Fellow servants, see Master and Servant, §§
170-198.
Mineowners, see Mines and Minerals, § 124.
Proprietors or managers of theaters or other
places of public amusement, see Theaters and
Shows, § 6.
Telegraph or telephone companies, see Tele-
graphs and Telephones, §§ 35-74.
Condition or use of particular species of prop-| Of person injured by defects or obstructions in
erty, works, machinery, or other
street, see Municipal Corporations, § 803.
instrumentalities.
Of person injured by electricity, see Electricity,
$18.
See Bridges, § 38; Explosives, §§ 9, 10; Mines
and Minerals, § 124; Railroads, §§ 257, 264,
278, 305-351, 358-401, 419-443, 453-481;
Street Railroads, § 94; Telegraphs and Tele-
phones, §§ 35-74; Theaters and Shows, § 6.
Automobiles, see Highways, § 172; Municipal
Corporations, § 705.
Public buildings or other public property, see
Municipal Corporations, §§ 852, 857.
Sewers, drains or water courses in cities, see
Municipal Corporations, §§ 838-846.
Streets and highways, see Highways, $$ 197,
213; Municipal Corporations, §§ 755-821.
Tools, machinery, appliances, and places for
work, see Master and Servant, §§ 101-125.
Use of highway by traveler, see Highways,
172.
Use of street by traveler, see Municipal Corpo-
Injuries to particular species of property.
Animals in operation of railroads, see Railroads,
§§ 419-443.
Goods shipped, see Carriers, §§ 110-137.
I. ACTS OR OMISSIONS CONSTITUT-
ING NEGLIGENCE.
(A) Personal Conduct in General.
§ 1. "Negligence" defined.-Monroe v. Atlan-
tic Coast Line R. Co. (N. C.) 315.
§ 6. Violation of an ordinance is negligence
per se.-Lindler v. Southern Ry. Co. (S. C.)
995.
(B) Dangerous
and Other Instrumentalities.
Electricity, see Electricity, §§ 14-19.
Explosives, see Explosives, §§ 9, 10.
$ 27. Where a seller of goods having a latent
defect of a kind likely to cause injury to the
buyer knew the fact, or by the exercise of prop-
er care should have ascertained it, he must ex-
ercise ordinary care to prevent injury to the
buyer.-Dail v. Taylor (N. C.) 135.
(C) Condition and Use of Land, Buildings,
and Other Structures.
Bridges, see Bridges, § 38.
Master's liability for acts or omissions of inde-
pendent contractor in general, see Master and
Servant, §§ 315, 318.
Mines, see Mines and Minerals, § 124.
Public buildings or other public property, see
Municipal Corporations, §§ 852, 857.
Sewers, drains, or water courses, see Municipal
Corporations, §§ 838-846.
Streets and highways, see Highways, §§ 197,
213; Municipal Corporations, §§ 755-821.
Tools, machinery, appliances, and places for
work, see Master and Servant, §§ 101-125.
§ 32. A landowner held not liable for inju-
ries to one who fell into a pit while crossing
the land for his own convenience.-Monroe v.
Atlantic Coast Line R. Co. (N. C.) 315.
II. PROXIMATE CAUSE OF INJURY.
Injuries to passengers, see Carriers, § 305.
Injuries to travelers from defects or obstruc-
tions in street, see Municipal Corporations, §
800.
§ 56. Negligence, to be actionable, must be
the proximate cause of an injury.-Merrill v.
Southern Ry. Co. (N. C.) 570.
III. CONTRIBUTORY NEGLIGENCE.
Of passengers, see Carriers, §§ 327-348.
Of person injured by operation of railroad, see
Railroads, 88 278, 381, 386.
Of servants, see Master and Servant, §§ 227–
241, 280, 296.
(A) Persons Injured in General.
$80. Where a person knowingly puts him-
self in a place of obvious peril without neces-
sity, and injury results, he cannot recover not-
withstanding the negligence of the person in-
juring him.-Columbus Ry. Co. v. Asbell (Ga.)
Damages, inadequate and excessive, see Dam-
ages, §§ 132, 138.
(A) Right of Action, Parties, Preliminary
Proceedings, and Pleadings.
Matters of fact or conclusions, see Pleading, § 8.
§ 108. A declaration, in an action for negli-
gence, held sufficient.-Bralley v. Norfolk &
W. Ry. Co. (W. Va.) 653.
§ 113. Contributory negligence is an affirma-
tive defense; and it is generally not necessary
for plaintiff to negative its existence in his peti-
tion.-Great Cosmopolitan Shows v. Petty (Ga.
App.) 624.
§ 113. Declaration for negligence held suffi-
cient even if required to negative contribu-
tory negligence.-City of Danville v. Thornton
(Va.) 839.
§ 113. Declaration for negligence held not
required to negative contributory negligence.-
City of Danville v. Thornton (Va.) 839.
§ 119. Where, in action for negligence, the
tal facts held not a variance.-Stone v. Camp-
main facts are proven, failure to prove inciden-
bells Creek R. Co. (W. Va.) 321.
Acts and statements accompanying or connected
with transaction as constituting part of res
gestæ, see Evidence, §§ 121-128.
Evidence of subsequent repairs in action for in-
juries to servant, see Master and Servant, §
270.
In action for injuries from obstruction in street,
see Municipal Corporations, § 818.
121. The doctrine of res ipsa loquitur ap-
plies only where on proof of the occurrence and
the more reasonable probability.-Dail v. Tay-
the injury the existence of negligent default is
lor (N. C.) 135.
§ 121. The burden is on plaintiff to prove
that negligence charged was the proximate
cause of the injury alleged.-Merrill v. South-
ern Ry. Co. (N. C.) 570.
§ 121. The burden is upon plaintiff of prov-
ing actionable negligence, notwithstanding the
rule making negligence for the jury where rea-
sonable men might differ on the question.-
| Baugher v. Harman (Va.) 86.
§ 122. Contributory negligence is not pre-
sumed, but must be alleged and proved.-Farris
v. Southern Ry. Co. (N. C.) 457. ́.
§ 122. An infant over the age of 14 years
is presumed to have sufficient discretion to be
sensible of danger and to have power to avoid
it. Hairston v. United States Coal & Coke Co.
(W. Va.) 473.
§ 122. Burden of proof by party alleging in-
competency of a boy over 14 years of age is on
Of person injured by defects or obstructions in the party alleging it.-Hairston v. United States
highway, see Highways, § 197.
Coal & Coke Co. (W. Va.) 473.
|