121 Va. 318 | Va. Ct. App. | 1917
after making the foregoing statement, delivered the opinion of the court.
The assignments of error, while numerous, raise only a few questions which are material, in the view we take of the case. Such questions will be considered and passed upon in their order as stated below.
The decision of most of the questions raised as aforesaid turns upon the application of the doctrine of assumption of risk.
That doctrine is well settled. The servant assumes the risk of dangers which are known to and appreciated by him, or which are ordinarily incident to the service or are open and obvious, which the law will infer are so known to him.
The chief question which we have to consider is—
1. Were the dangers incident to the place of work of the plaintiff all assumed by him, so that the defendant owed him no duty of prevision with respect to what was likely to subsequently occur affecting the safety of such place, which might be caused, (a) not by changing conditions at the place of work of the servant due to the progress of his work, or to the other operations of the master within view of the servant, but (b) to other operations of the master than those being performed by the servant, from which the view by the latter of, and the view of him from, such operations was obstructed, and which operations, if properly performed, need not have changed the condition or increased the danger of the place of work?
' N. & W. Ry. v. Nuckols, 91 Va. 201, 21 S. E. 342; Hambly’s Case, 154 U. S. 349, 14 Sup. Ct. 983, 38 L. ed. 1009, and numerous other cases from other jurisdictions, involving injury to track repairers, cited and relied on for defendant. The same is true of the railroad yard cases of Pittard’s Adm’r v. So. Ry. Co., 107 Va. 1, 57 S. E. 561 ;N. & W. Ry. v. Belcher, 107 Va. 340, 58 S. E. 579, and W. S. R. Co. v. Grove’s Adm’r, 113 Va. 411, 74 S. E. 148, cited and relied on for defendant.
We are of opinion that the instant case falls within the class of cases (b) referred to in the next above question, and that the principle on which rests the case of R. & D. R. Co. v. Norment, 84 Va. 167, 4 S. E. 211, 10 Am. St. Rep. 827, is decisive of the question we are considering in favor of the plaintiff. The duty of prevision aforesaid rests upon the master in such a case. It concerns the place of work of the servant and hence is a non-assignable duty of the defendant to exercise ordinary care under the circumstances to prevent the moving trips of other cars coming into collision with the cars, left and expected to remain stationary, so as to drive or push them back upon and increase the danger of the plaintiff’s place of work. The defendant having failed to place any signal or to otherwise exercise reasonable care to notify its other servants operating the motor and cars with a view to prevent such a collision and result as aforesaid, the subsequent action of such servants resulting in such collision and injury to plaintiff was but the natural and probable result of such negligence of the defendant. That is to say:
The proximate cause of the injury in the instant case was the failure of defendant to place any signal or to otherwise exercise reasonable care to notify its servants oper
It is urged for defendant that there is a distinction with respect to the application of the doctrine of assumption of risks to overhaulers, as in the Norment Case, and track repairers, as in cases cited and relied on for defendant as aforesaid. In principle, it is not from the difference in the character of the service that the non-assignable duty aforesaid arises, but from the situation and surrounding circumstances in which the servant is placed and the knowledge, actual or constructive, of these factors in the case being brought home to the master.
2. Was the intervention of the derailed car a superseding cause of the plaintiff’s injury?
It is elementary that a cause, to be a superseding cause, must entirely supersede the operation of the negligence of the defendant, so that such cause alone, without the defendant’s negligence contributing in the slightest degree thereto, in fact produced the injury. City Gas Co. v. Webb, 117 Va. 269, 84 S. E. 645.
It is obvious, therefore, that this question must be answered in the negative.
3. Was the plaintiff a volunteer in work in the effort to replace on the track the derailed car?
The statement of facts on this subject noted above sufficiently answers this question in the negative.
4. We have not noticed above other considerations urged for the defendant, such as that by the manner in which the plaintiff attempted to restore the derailed car to the track he caused his own injury; that the plaintiff was in effect guilty of contributory negligence because, in the exercise of reasonable care on his part, he might have seen or heard the approaching cars, which caused the collision which resulted in his injury, in time to have avoided that result;
5. It is further claimed for defendant that its foreman —and hence the defendant — could not reasonably have anticipated a collision resulting in injury to plaintiff as it occurred — “that the plaintiff would be struck by a car and pinned up against a loaded car which was not at the place when the foreman was there.”
This very question of fact was submitted to the jury under two instructions as asked for by defendant, which were extremely favorable to it. The verdict of the jury, therefore, is conclusive on the subject.
For the foregoing reasons we find no error in the action of the trial court and the judgment complained of must be affirmed.
Affirmed.
