120 Va. 784 | Va. | 1917
delivered the opinion of the court.
This is an action for personal injuries, in which the judgment under review was rendered in favor of L. J. Jones, the plaintiff, against the Chesapeake and Ohio Railway Company upon a demurrer to the evidence.
Several grounds of error are assigned, but inasmuch as we think the trial court erred in overruling the demurrer to the evidence, which necessitates a reversal of the judgment on the merits, we need only notice that assignment.
The plaintiff was an employee of the Richmond branch of the American Locomotive Works, and was ordered to accompany, as care-taker, two new locomotives (dead engines) over the line of the defendant company from Richmond, Virginia, to Cincinnati, Ohio, there to be delivered to the Big Four Railroad Company. His fare as a passenger was paid, and he traveled in one of the engines, both of which were being hauled on their own wheels as parts of a through freight train.
Before reaching Huntington, West Virginia, the engines were “running hot,” and were withdrawn from the train and overhauled in the shops at that place. Afterwards, they were again taken up by another through freight train, consisting of fifty-one coal cars, their position in the train being “ten car lengths behind the engine” that was pulling the train; so that there were forty or forty-one coal cars between the “dead engines” and the caboose car in which the conductor was riding.
The accident occurred in the night timé, and the first intimation the conductor or engineer had of plaintiff’s danger, or that he had been hurt, was after the train stopped at Ashland, fifteen miles from Huntington. They had no notification whatever from the plaintiff or from any other source that he had left the cab of his engine, or that he had any such purpose. The train stopped for a moment on
It seems clear to us that, taking the statement attributed by the plaintiff to the conductor, “that he would have ample time to inspect and oil his engine,” at its face value, it was never contemplated that he would attempt to do so under the conditions disclosed by the record. By no reasonable' rule of construction can the language imputed to the conductor admit of such interpretation. One may not thus
It is well settled in this jurisdiction that wherever the negligence of the plaintiff contributes proximately and efficiently to his injury, there can be no recovery. Pennsylvania R. Co. v. Jenkins, 119 Va. 186, 89 S. E. 96.
It follows from these considerations that the judgment of the hustings court must be reversed, the demurrer to the evidence sustained, and judgment rendered for the plaintiff in error, the Chesapeake and Ohio Railway Company.
Reversed.