Opinion. guilty of negligence. If the injury was occasioned solely by the negligence of the defendant company, there can be no doubt of the plaintiff's right to recover damages for the killing of her husband. But, if there was negligence on the part of the deceased which contributed to the injury, the law will not undertake to apportion the fault. There can be no recovery for an injury caused by the mutual fault of both parties. The mere negligence of the deceased, however, would not disentitle his administratrix to recover, unless it were such that, but for that negligence, the misfortune would not have happened; nor if the defendant might, by the exercise of care on its part, have avoided the consequences of the plaintiff's negligence. C. O. Railroad Co. v. Lee, ante, p. 642, and cases cited. These principles have been long well settled, and are thoroughly understood by the profession; and this case furnishes to an uncommon degree a complete illustration of each branch of these principles. First. The defendant company was undeniably guilty of negligence in taking into this train this improperly loaded car; and while it is true that, when a servant enters upon an employment, he accepts the service subject to the risks incident to it, it is no less true that it is the duty of the company to exercise care to provide and maintain safe, sound, and suitable machinery, roadway, structures, and instrumentalities; and it must not expose its employees to risks beyond those which are incident to the employment, and were in contemplation at the time of the contract of service; and the employee has a right to presume these duties have been performed. In this case the dangerous car should not have been taken into the train until it had been properly loaded, and divested of unnecessary and unusual danger to life and limb. And after it had been thus improperly admitted and negligently coupled in the train, it was negligence to direct this brakeman to signal and couple, when both could only be performed on the side of the greatest danger. Second. The negligence of the company being clear and undeniable, it is urged that as Opinion. this brakeman knew of the dangerous character of this car, and the special danger on the right side, he should have declined the service when specially so ordered by the company's agent to signal and couple on this side. And this may be conceded under the authority of the case of Darracott v. C. &O. Railroad Co., 83 Va., 288, and the cases cited. Yet, in the third place, the fact is, that this dangerous duty was performed, the train coupled, and his life was not yet forfeited by this act. But, by the negligence of the company, and his co-operating negligence contributing to the accident, he was caught and squeezed tight between the timber and the car; and then his negligence and his danger became known to the defendant. And the defendant, then having become aware of the danger, and the negligence of both company and employee, by the exercise of care on its part, might have avoided the consequences of the deceased's negligence by uncoupling the train which was squeezing the deceased and signaling to the engine-man to move up. But, without going to see whether the coupling had been made, which indeed was right under his eyes, and without looking, the conductor hastily, hurriedly, incautiously, negligently, signaled the engine-man to go forward quick; and he went forward so quickly and rapidly that the witness, McNalty, who had run up for the purpose, and was close to the unfortunate man, was not able to snatch him out of the way of the train, which quickly crushed him to death as he lay upon the ground. And the evidence shows that he was only slightly, if, indeed, at all, hurt, until he was jerked down. by the impetus of the cars, which properly ought not to have moved at all until he was taken from under the wheels. As deceased came to his death solely by this negligent conduct of the company's agent, the case is clearly with the plaintiff on the demurrer to the evidence, and the circuit court erred in holding otherwise; (Dun v. Railroad Co., 78 Va., 645; Va. Md. Railroad Co. v. White, ante, p., 498 and cases cited;) for the company is clearly bound by the acts of the conductor in this Opinion. case, who could not, upon well-settled principles, have been held the fellow-servant of deceased, (Moon v. Railroad Co., 78 Va., 745, and cases cited; Railroad Co. v. Ross, 112 U. S., 377, 17 Amer. & Eng. R. Cas. 501.) The judgment of the circuit court of Nelson county will be reversed and annulled, and such judgment rendered here as the said circuit court ought to have rendered. JUDGMENT REversed. Syllabus-Statement. Richmond. JONES V. Degge. APRIL 5th, 1888. Absent, Richardson, J. 1. CHANCERY PRACTICE-Want of replication.-Where defendant has taken depositions as if there had been a replication, the decree shall not be reversed for want of a replication. Code 1873, ch. 177, % 4. 2. WITNESSES-Competency-Husband and wife.-Where husband and wife are joint makers of the note sued on, neither is a competent witness, although no relief as against him is prayed for in the bill. The payee is also incompetent. 3. CASES DISTINGUISHED.—In Hays v. Association, 76 Va., 225, and Farley v. Tiller, 81 Va., 275, the wife was held to be a competent witness, because the husband was beneficially interested in the suit and was joined as a party with her simply because the "married woman's act" required it. 4. FRAUD-Conflicting evidence-Burden of proof-Case at bar.-Burden of proving fraud is on the alleger thereof, and the proof must be clear. In this case the evidence is conflicting, and fails to sustain the charge. 5. INADEQUACY OF CONSIDERATION-A defence, when ?—Inadequate consideration is no defence to an action on a note given for purchase of property, unless the inadequacy be so gross as to lead to the irresistible influence of fraud. Mathews v. Crockett, 82 Va., 394. 6. PRINCIPAL AND SURETY-Exhaustion of princiapl.-Where bill alleges that principal has no estate, and the allegation is not denied, but is proven, it is not error to decree at once against the estate of the surety. Penn v. Ingles, 82 Va., 65. Appeal from decree of corporation court of city of Norfolk, rendered June 20th, 1887, in the suit wherein Richard H. Jones and Susan A., his wife (the appellants), are defendants, Statement-Opinion. and W. W. Degge (the appellee), is plaintiff. Opinion states the case. D. J. Goodwin & Son and W. F. Woodhouse, for the appellants. Borland & Willcox, for the appellee. LEWIS, P., delivered the opinion of the court. This was a suit in equity to subject the separate estate of a married woman to the payment of a certain negotiable note for $500, executed jointly by herself and husband, on the 14th of February, 1885. The note was given for a debt due by the husband to the plaintiff for the purchase of a one-half interest in a weekly newspaper, known as the "Sunday Gazette,” published in the city of Norfolk. The separate estate consisted of several houses and lots, situate in Norfolk, which shortly before her marriage, in 1884, were conveyed to a trustee for the sole and separate use of the wife, with power of disposition by her direction to the trustee. The bill alleges that the husband is insolvent, and has no estate of any description, real or personal. And the prayer of the bill is, that the rents and profits of the separate estate, or so much thereof as may be necessary, be subjected to the payment of the note above mentioned, which is past due and wholly unpaid. Both husband and wife are made defendants to the bill, with a prayer that they be summoned to answer the same. The defendants answered jointly, and subsequently an amended bill was filed, making the trustee in the deed of settlement a defendant, who also answered. The husband and wife defended in their answer on the ground of failure of consideration and fraud. They averred that the contract of purchase, on account of which the note sought to be collected was |