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Gleeson v. Virginia Midland Railway Company, by the plaintiff tended to show that in January, 1882, he was a rail way postal-clerk, in the service of the United States post-office department; that on Sunday, the 15th of that month, in the discharge of his official duty, he was making the run from Washington to Danville, Va, in a postal-car of the defendant, and over its road; that in the course of such run the train was in part derailed by a land-slide which occurred in a railway cut, and the postal-car in which the plaintiff was at work was thrown from the track upon the tender, killing the engineer and seriously injuring the fireman; and that the plaintiff, while thus engaged in performing his duty, was thrown violently forward by the force of the collision, striking against a stove and a letter-box, three of his ribs being broken, and his head on the left side contused, which injuries are claimed to have permanently impaired his physica st rength, weakened his mind, and led to his dismissal from his office, because of his inability to discharge its duties Defense was made by the company under these propositions: That the land-slide was caused by a rain which had fallen a few hours previous, and therefore was the act of God; that it was a sudden slide, caused by the vibration of the train itself, and which, therefore, the company was not chargeable with, since it had, two hours before, ascertained that the track was clear; and that the injury resulted from the plaintiff's being thrown against the postal-car's letter-box, for which the company was not responsible, since he took the risk incident to his employment At the close of the testimony, the court, having given to the jury certain instructions in accordance with the requests of the plaintiff, charged the jury, at defendant's request, as follows: '(1) The burden of proof is on the plaintiff to show that the defendant was negligent, and that its negligence caused the injury (2) The jury are instructed that the plaintiff, when he took the position of a postal-clerk on the railroad, assumed the risk and hazard attached to the position, and if, in the discharge of his duties as such, he was injured through the devices in and about the car in which he was riding, properly constructed for the purpose of transporting the mails, the railroad is not liable for such injury, unless the same were caused by the negligent conduct of the company or its employes (3) The court instructs the jury that, while a large degree of caution is exacted generally from railway companies in order to avert accidents, the caution applies only to those accidents which could be prevented or averted by human care and foresight, and not to accidents occurring solely from the act of God If they believe that the track and instruments of the defendant were in good order, its officers sufficient in number and competent, and that the accident did not result from any deficiency in any of these requirements, but from a slide of earth caused by recent rains, and that the agents and servants of the company had good reason to believe that there was no such obstruction in its track, and that they could not, by exercise of great care and diligence, have discovered it in time to avert the accident, then they should find for the defendant (4) If the jury believe from the evidence that the defendant's instruments, human and physical, were suitable and qualified for the business in which it was engaged; that the accident complained of was caused by the shaking down of earth which had been loosened by the recent rains, and that the earth was shaken down by the passing of this train,-then the accident was not such an act of negligence for which the defendant would be responsible, and the jury should find for the defendant' The counsel for the plaintiff objected to the granting of the first of these prayers, and asked the court to modify it by adding the words 'but that the injury to the plaintiff upon the car of the defendant, if the plaintiff was in the exercise of ordinary care, is prima facie evidence of the company's liability' But the court refused to modify the said prayer, and the plaintiff duly and severally excepted to the granting of each one of said prayers on behalf of the defendant, and to the refusal of the court to modify the said first prayer, as requested The jury, so instructed, found for the defendant, and judgment was rendered accordingly That judgment having been affirmed by the court in general term, (5 Mackey, 356,) this writ of error was taken .
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