108 Va. 632 | Va. | 1908
delivered the opinion of the court.
This is an action brought by Rowsey’s administrator against the Chesapeake and Ohio Railway Company, to recover damages for the death of his intestate, alleged to have been caused by the negligent act of the defendant company.
Plaintiff’s intestate was a brakeman upon the Chesapeake and Ohio Railway, and at a point upon its line some distance west of Charlottesville,- near Ivy station, the public highway crosses the railroad upon a bridge. Plaintiff’s intestate was struck on the head by this bridge, and died in a short time thereafter; and the negligence alleged is that the bridge, which it was the duty of the defendant company to keep in a reasonably safe condition, was so low as to be dangerous.
The plaintiff recovered a judgment against the defendant, to which a writ of error was awarded, and the first error assigned is to the action of the court in overruling the demurrer to the declaration and the four counts thereof.
It is unnecessary to pass upon the second and third counts, as the jury were directed not to consider them. The demurrer
The averment of the declaration upon this point is that the defendant, “Rot regarding its duty in this behalf, so carelessly and negligently conducted itself that it failed and omitted to use proper care to provide a reasonably safe place for the said G. W. Rowsey to discharge his duties as aforesaid, and failed and omitted to use due and proper care in the construction and maintenance of its railway and the structures connected therewith, and carelessly and negligently procured, caused and permitted the space between the tender and cars of said train and the bottom of the said overhead bridge to be and remain unreasonably dangerous and low, so that the said bridge was in dangerous proximity to the tops of the said cars and tender, to-wit: * * * feet therefrom, so as to unreasonably imperil the life of the said G. W. Rowsey * * * .”
We are of opinion that this was sufficient to give the defendant notice of the cause of action which it was required to meet. Merely to have said, that the overhead bridge was dangerous might have been amenable to the objection insisted upon by counsel for plaintiff in error; but to say, that it was dangerous because it was too low, points out the particular in which the defendant company had been negligent — that it had constructed and maintained the bridge so low as to be dangerous and thereby imperil the lives of those of its employees who were required to pass under it.
Another objection urged here to the declaration is, that it does not comply with section 1294-d (361 of the Code, which provides as follows: “Where any railroad track passes under any bridge, tunnel or structure, not sufficiently high to admit of the safe passage of cars upon such railroad tracks, with the servants and employees standing at their posts of duty on said cars, the person or persons, firm or corporation, operating said
We might dispose of this ground of demurrer by a reference to section 3271 of the Code, which provides, that “in civil cases the court on motion of any party thereto shall, or on its own motion may, require the grounds of demurrer to be stated specifically in the demurrer, and no grounds shall be considered other than those so stated.” There is no reference to section 1249-d (36) in the grounds of demurrer assigned; but we will consider the question now as it arises in another aspect of the case.
The section mentioned was not intended to diminish the liability of railroads, but to increase it. If the railroad whose tracks pass under any bridge, tunnel or structure not sufficiently high to admit of the safe passage of cars upon the tracks with the servants and employees at their posts of duty on said cars, fails to maintain at proper distances on each side of said tunnel or structure warning signals of approved design and in general use, those operating such railroads are made liable in damages for the death or injury of any employee or servant resulting from the insufficient height of such bridge, and no contract, express or implied, and no plea of, or defense based upon, the contributory negligence of such servant shall relieve such railroad from liability. Railroads having the structures denounced by this statute, who do not erect the danger signals for which
We find no error in the ruling of the court upon the demurrer to the declaration.
The next assignment of error was taken to the ruling of the court upon the motion of the defendant company to quash the subpoena duces tecum sued out by the plaintiff, requiring the defendant to produce certain books and papers. This assignment was waived in open court and need not be considered.
The third assignment of error is that the trial court overruled the motion of plaintiff in error to restrain, counsel for defendant in error from making certain statements to the jury highly prejudicial to the railroad company.
It appears that counsel for defendant in error, while making the closing argument before the jury, said in substance as follows : “That before the adoption of the new Constitution in this State there could be no recovery in cases of this character; that knowledge by an employee of the unsafe character of an overhead bridge had been held to be one of the assumed risks of the employment; that this rule of law had, however, been changed by the new Constitution; that it took the constitutional convention of this State to make a change in the law which prevented a recovery in this class of cases; and that constitutional provision was as follows: (Here counsel read the following constitutional provision, as embodied in instruction 'A’ given by the court) : 'Knowledge by any such railroad employee injured, of the defective or unsafe character or condition of any apifiiances or structures, shall be no defense to an action for injury caused thereby.’ ”
The next assignment of error is to the giving of two instructions asked for by the plaintiff, marked “A” and “B,” and declining to give instructions 1, 4, and 8, asked for by the defendant in the court below.
Section 1294-k of the Code provides, that “knowledge by any employee injured of the defective or unsafe character or condition of any machinery, ways, appliances, or structures of such corporation shall not of itself be a bar to recovery for any injury or death caused thereby.”
Instruction “A,” in its first clause, is copied from the statute. It announces the rule which is to control the jury when they come to consider the case before them, and they are told, that although the bridge in question was situated dangerously near the top of the tender and cars, and was thereby rendered unreasonably unsafe to the said Rowsey in the performance of his duties as brakeman, if they believe that Rowsey was attending to his accustomed duties with ordinary care and prudence, they must find for the plaintiff, notwithstanding they might believe
blow, it is negligence for a railroad company to construct, maintain, and operate a road under a bridge which is so low that its employees cannot perform their duties with reasonable safety while in the exercise of ordinary care. This proposition was stated by this court in Haffner v. C. & O. Ry. Co., 96 Va., 628, 31 S. E. 899, where a brakeman was killed by striking a bridge 28% inches above the cars, and the court said: “It is negligence for a railroad company to operate its road with such a bridge, but while dangerous in character, its danger could be avoided.” And, under the circumstances of that case, we held that the plaintiff could not recover.
In N. & W. Ry. Co. v. Marpole, 97 Va. 595, 34 S. E. 462, the court said: “The court’s instruction bio. 2 from its beginning down to and including the word ‘recover’ is substantially the same as defendant’s instruction No. 1, refused, and propounded the settled law that, although it is negligence for a railway company to operate its road with an overhead bridge too low for its employees, whose duties are upon the tops of the cars, to pass when standing on the cars in the discharge of their duties, yet if an employee knows or ought to know the dangerous condition of the bridge, and fails to use ordinary care to protect himself in consequence of which he is injured, he is guilty of contributory negligence and cannot recover for the injury.”
It will be observed that the instruction under consideration has reference only to the knowledge by an employee of the unsafe character of the bridge. It excludes the idea that there was any other circumstance which might tend to convict the plaintiff of contributory negligence and thereby defeat his recovery, because the instruction is predicated upon the theory and so states, that the employee was in the exercise of such care as a man of ordinary prudence would use at the time he sustained the injury which caused his death. The object, and the
It is true, as this court has'held, that knowledge of the unsafe character of a structure, while alone not sufficient to establish contributory negligence, is a circumstance to be considered by the jury along with other facts tending to establish that defense. Thus, in N. & W. Ry. Co. v. Cheatwood, 103 Va. 356, 49 S. E. 489, the.court, discussing the effect of the change in the law which is embodied in section 1294-k, above referred to, passed in conformity with the constitutional provision upon the subject, that “while the right to make the defense of contributory negligence is not abrogated by the constitutional provision and the statute under consideration, the defense cannot rest alone upon the knowledge of an injured employee of the defective or unsafe character or,condition of any machinery, ways, appliances or structures which may have been instrumental in causing the injury for which he sues, but such knowledge is rightly to be considered by the jury 'along with all the evidence in the case in determining” whether the employee injured used .that caution required in -the situation he was placed in when the injury was received. Before the adoption of the constitutional provision and the statute, knowledge by the employee of the defective or unsafé character or condition of any machinery, ways or appliances or structures which were instrumental in causing the injury sued for, upon the doctrine of assumed risk based upon knowledge, actual or imputed, arising from the contract between the parties, the law implied that the servant assumed the risk of all danger of which he had knowledge, or by the use of proper diligence would have had knowledge, and therefore did not permit a recovery for an injury arising from defective machinery, etc., where the defect was known to him.”
Instruction “B” deals with contributory negligence, and tells the jury that the law presumes that Rowsey was in the exercise of due care at the time he was injured, and that the burden of proving his contributory negligence was upon the defendant,
Much of what we have said with reference to instruction “A” applies with equal force to instruction “B,” and the citation of the opinion of the court in Cheatwood’s Case seems to be conclusive.
We are of opinion that there was no error in granting the two instructions asked for by defendant in error.
Plaintiff in error asked for eight instructions. The court gave all except Eos. 1, 4 and 8.
Instruction Eo. 1 tells the jury that “in this case the defendant company was not negligent in having a bridge over its railway too low to permit the safe passage of a person standing upon the top of one of its cars.”
Even in those jurisdictions where the practice is for the court to direct a verdict, we apprehend that, as applied to the facts of this case, such an instruction could not be approved. It takes from the consideration of the jury the only fact of negligence upon which the defendant in error relied; and that there was evidence tending to support the case stated in the declaration will appear when we come to consider the motion to set aside the verdict as being contrary to the evidence.
Instruction 4 seems to be in the teeth of the constitutional provision and of the statute, and of the cases considered in connection with instruction “A” asked for by defendant in error. It tells the jury, that if Eowsey knew, or ought to have known, that he could not pass in safety under the overhead bridge standing upon the box car or tender, but that, notwithstanding
Instruction Ho. 8 presents, in substance, the same proposition. It states, that, although the engineer gave a signal for the application of brakes before reaching Ivy station, that fact did not relieve Eowsey from the duty incumbent upon him to exercise ordinary care and prudence for his own safety; and if they further believe from the evidence that he knew, or ought to have known, of the proximity of the bridge and its dangerous character, and notwithstanding such knowledge, went on top of the train just as he was approaching the bridge, he was guilty of contributory negligence.
We are of opinion that there was no error in the ruling of the court upon the instructions.
The remaining assignment of error is that the court overruled the motion of the defendant to set aside the verdict of' the jury on the ground of misdirection, and because it was contrary to the law and the evidence.
G. W. Eowsey was a brakeman in the service of the plaintiff in error. When he made application for employment with the railroad company,- he signed a paper in which the following question, among others, was asked and answered:
“Do you know that bridges, including highway bridges and tunnels, on this line are too low to clear a man standing on a box car?” A. “Yes.”
He went over the road with Turner, a freight conductor, in order that he might acquaint himself with the road and be instructed as to his duties as brakeman. A witness for the company says that he made at least three trips — “They have always made three or four, ox as many as the conductor thought necessary. It was left with the conductor to say
The habit is to fill the tender with coal at Staunton, and upon an ordinary run the coal will have been so far removed from the tender by the time the train reaches Ivy as that it will slope from almost nothing at the front of the tender to the top of the tender at the rear.
From these facts, we are of opinion that the jury were justified in concluding that the injury from which Rowsey died was caused by his head striking the overhead bridge. There is no other rational way of accounting for the injury. It is not a case in which we should apply the doctrine known as that of res ipsa loquitur, but one in which, taking into consideration all of the circumstances surrounding the occurrence, we find that the conclusion reached hy the jury is supported by the evidence.
As was said in Haffner v. C. & O. Ry. Co., and in N. & W. Ry. Co. v. Marpole, already cited, it is negligence for a railroad company to operate its road with an overhead bridge too low for its employees to pass when standing on the cars in the discharge of their duties. Its negligence, as we have seen, was the proximate cause of the injury; and as knowledge by an employee of the unsafe character or conditions of this structure no longer bars his recovery for an injury sustained by reason thereof, and as there is no evidence of any act of negligence on the part of the employee which can be considered along with his knowledge of the defect in order to impute to him contributory negligence, the judgment complained of must be affirmed.
Affirmed.