140 Va. 649 | Va. Ct. App. | 1924
delivered the opinion of the, court.
The defendant in error, Curtis Powell, was plaintiff in the trial court, and will be hereinafter referred to as the plaintiff. The plaintiff in error was' defendant in the trial court, and will be hereinafter referred to as the de'endant. -
The notice of motion was originally instituted against the Chesapeake and Ohio Railway Company for damages sustained by the plaintiff on February 2,1918, because of alleged negligence on the part .of the said company when it was under Federal control. Before trial of the case, James C. Davis, the then Director General of Railroads, as such, was made defendant to the notice of motion.
The Chesapeake and Ohio Railway Company is an interstate system, engaged in interstate.commerce, and hence the Federal employers’ liability act (U. S. Comp. St. §§8657-8665) controls the case.
The plaintiff was employed by the defendant for a period of more than four months prior to .the injury of which he complains as a section hand under a foreman, L. E. Minter, who had been in the employ of the Chesapeake and Ohio Railway Company for many years. The section of track which Minter and the hands under him had been engaged in repairing for some weeks, lies between the stations of Palmyra and Troy, in Fluvanna county.^The daily routine was to leave Palmyra (where
On the morning of the accident, the passenger train which foreman Minter usually followed out from Palmyra was late, and he went to the phone, as he expressed it, “for his orders.” He ascertained that a freight train known as the “Bull Dog Special,” running light, which had not then reached Troy, would meet the passenger train at Roekaway, a telegraph station about one and one-half miles west of Palmyra. Minter’s testimony on this point is brief, uncontradieted in its essential features, and is as follows:
“Q. Was that train ever late?
“A. Yes, sir.
“Q. Well, when it is late what was your custom?
“A. Oh, I would go to work. I would get orders, and find out how much late it is, and if I have time to get to my work I go to work.
“Q. I believe you testified you phoned?
“A. Yes, sir; I do it every morning. I cannot afford to go out here and take a risk against these trains around these bluffs without doing it.
“Q. And you did it on that morning?
“A. Yes, sir; I keep the keys for that purpose.
“Q. Where did you phone?
“A. I phoned, to a telegraph station. They knew exactly where the trains were.
“Q. What station?
“A. Troy.
“A. They said it was late; and that it would meet this extra at Rockaway; and that the extra had not passed Troy at that time. And I knew that I would have time to get to my work.
“Q. Where were you going?
“A. Just above Wildwood.
“Q. How far is that from Troy?
“A. Four miles.
“Q. How far is it from here?
“A. Three miles.”
Having performed the duty of ascertaining as near as possible where the trains were, he took his force and set out upon his journey.
The evidence shows that the motor truck used to transport the hands to and from their work was of the usual type used for this purpose, and that it had been used practically every day during the plaintiff’s employment for the purpose. It showed that the railroad track over which it passed had numerous curves and that it ran in and out among the hills and bluffs, and that the way was, by nature, somewhat hazardous for employees who were compelled to go to their work as these employees were.'
After the station called Rockaway, where the passenger and freight trains were scheduled to meet, had been passed and all danger from the passenger train overtaking the motor truck had ceased, the accident which resulted in the plaintiff’s injury occurred.
Minter was operating the motor car, sitting on the left hand side at the rear. The plaintiff was sitting on the right side of the car in front, and under Minter’s direction keeping a lookout ahead for approaching trains. Tom Berkeley, another employee, who was deceased at the time of the trial, was sitting by plaintiff’s
Minter, Payne and Walker all testify that as the ear was passing through a cut and was rounding a curve which bore to the left and going at a speed not exceeding fifteen miles per hour, the plaintiff either fell or jumped from the motor car upon the track between the rails in front of it, and was run over and injured. They testified that after the motor ear had been stopped a rail, or a rail and a half, length ahead, and plaintiff had been helped up and walked with some assistance to a crossing just ahead of where the accident happened, some five or six rail lengths, and after the motor car had been pushed forward to the crossing and removed to the side, the freight train passed by and did not stop, and that some time thereafter the passenger train passed.
They and others testify that the plaintiff stated to them immediately after the accident, and before he was carried to the hospital, that he did not know “how it happened — the only way he could arrive at it, that he was not holding on, and that he just became overbalanced and fell off, that he did not attach any blame to anybody.”
The plaintiff’s testimony at the trial as to how the accident happened is in direct conflict with all the other eye witnesses. As far as it is pertinent to this discussion, he testified:
“Q. Now, will you tell the jury in your own words what happened after you got on the car, until the time
“A. Well, I got on the hand ear that morning and started up the track towards Wildwood, and on my way .there I met a train, and Mr. Minter was running awfully rapid, and I saw the train approaching, and I told him the train was coming; and as soon as I said the train was coming, he cut the engine, off from working and applied the. brake, and it just pitched me off forward; that jerk.
“Q. Well, when they pitched you off, what became of you then?
“A. I do not know what became of me then.
“Q. You do not know whether the car ran over you or not?
“A. No, sir; I got crippled, but I do not know what crippled me.
“Q. You say that you called Mr. Minter’s attention to the train?
“A. Yes, sir.
“Q. What did you see?
. “A. I saw the light first, and then I saw the train. I saw the smokestack.
“Q. Well, you say you first saw the headlight?
“A. I did not see the headlight. I saw the light flashing around the curve.
“Q. You saw the reflection of the light?
“A. Yes, sir.
“Q. Then just explain it to the jury?
“A. I saw the light flashing around the curve, and then I saw the smokestack.
“Q. Tell the jury how long was it after you told Mr.
“A. Just as soon as I finished talking; it took place all at once.
“Q. All at once?
“A. Yes, sir.
“Q. Now you say that you did not know anything when you struck the ground or struck the track?
“A. No, sir.
“Q. When did you first know anything?
“A. In the hospital.
“Q. Where?
“A. Richmond.
“Q. How long after the accident?
“A. I did not remember what day it was when I came to myself so that I knew where I was at.
“Q. Come as near to it as you can?
“A. I guess it was about two days.”
The plaintiff further testified that he had ridden the motor car to and from his work for about four months.
Among other allegations of negligence which are charged as resulting in injury to the plaintiff are that the foreman, Minter, was negligent in going upon the tracks between two trains, one following and the other meeting the motor car; that it was negligence to use a gasoline motor car with its greater speed in the place of a hand ear; that the foreman drove the car too rapidly around curves when the track ahead was not in plain view; that he drove at an excessive rate of speed and when warned that a freight train was approaching stopped suddenly and precipitated the plaintiff upon the track, ran over him and injured him.
Upon the issue joined, the jury found a verdict in the sum of $2,500.00 in favor of the plaintiff, upon which judgment was entered by the court.
“The court erred in overruling the motion to set aside the verdict because it was contrary to the law and evidence and without evidence to support it — and in declining to enter up judgment for the defendant for the same reason.”
We think this assignment of error is well taken. Of course there can be no recovery in this ease unless there was negligence on the part of the Chesapeake and Ohio Railway Company, its agents or employees. The first inquiry therefore is, was there any negligence on the part of Minter, the foreman, which was the proximate cause of the injury of which the plaintiff complains.
The jury having found a verdict for the plaintiff, the evidence adduced in his behalf, when it conflicts with that of defendant, for the purposes of this discussion, is accepted as true.
There are only four material points of conflict. The plaintiff’s testimony upon these is:
1. That as the motor car upon which the section crew were riding to their place of work was rounding a curve, it was met by a freight train bearing down upon them in close proximity when it was discovered.
2. That upon being warned by the plaintiff, who was on the lookout, and who first saw the approaching train, Minter, the section foreman, suddenly applied the brakes and stopped the motor car.
3. That at the time the brakes were thus suddenly applied Minter was running the motor car at an excessive rate of speed, estimated at from thirty to thirty-five miles an hour; and
Before discussing the question as to whether there is any negligence shown on the part of Minter resulting in injury to the plaintiff, accepting the foregoing as the true facts, it is pertinent to say that there is no negligence disclosed by the evidence as to which there is no conflict and no state of facts which could properly have been submitted to the jury for it to say whether there was negligence or not. In other words, as a matter of law, leaving out of consideration for the time being the foregoing points upon which there is a conflict, there is no negligence on the part of the defendant or its agents disclosed by the evidence. Indeed, this seems to have been conceded by the plaintiff in the trial court, the plaintiff’s entire case there having been presented to the jury by an instruction charging negligence in suddenly stopping the motor car; thereby precipitating him upon the track and running over him.
But aside from this apparent concession, while in the notice of motion for judgment there were a number of charges of negligence as heretofore indicated and probably some evidence which might be said to bear upon those charges, yet the undisputed evidence shows that in all his preparations for going out upon the tracks to his work, the .foreman complied with the rules of the company and exercised all the care that could be expected or required of one in his position under like circumstances. The passenger train he usually followed was late. He located this train and the freight train, and his conclusion was that he had ample time to reach the point at which the repair work was being
The use of the motor ear for transporting the crew was the accustomed manner an,d means of going to and coming from the work, known to the plaintiff, and participated in by him for weeks, without objection . or complaint. He was acquainted with the track and its curves. So that, as to all these things, involving dangers to a certain degree though they did, there is no act of negligence shown to aggravate the danger; they were dangers incident to the employment, and the plaintiff assumed the risk as to them.
Coming now to consideration of the evidence as to which there is a conflict, as above set out, and upon which the plaintiff rests his case, we feel justified in saying that if there were no testimony in the case as to driving the motor car at an excessive rate of speed (thirty to thirty-five miles an hour as the plaintiff estimated this speed), and, coupled with that, testimony as to sudden application of the brakes and consequent sudden stopping, and the jury had found a verdict for the plaintiff, it would have been the plain duty of this court to set aside the verdict and enter judgment for the defendant. In other words, as a matter of law, there would have been no negligence on the part of the defendant disclosed by the evidence, and no act which the jury should have been left to pass upon as negligence resulting in injury.
The question as to whether it was negligence to run at a rate of speed in excess of the twenty miles per hour, the maximum speed permitted by the rules of the
In 4 Thomp. Neg., section 4771, it is said: “Railway servants who ride up and down the track upon- hand ears assume the-risk of coming into collision with trains which they know may come along at that time, or with fast trains which they know to be due; or with ‘wild trains’ which they know are liable to appear when it is their duty to look out for them and protect themselves from them * * or the risk of injury from the hand car jumping the. track, caused by the fact of its being too light, of which fact the injured employee knew or ought to have known in the exercise of ordinary care and judgment.”
In 4 Elliott on Railroads (3d ed.), section 1862, the author says: “Ordinarily, section men or track-men assume the risk incident to running of trains, whether extra trains or trains running on schedule time. Such employees are bound to know that regular trains may be delayed and pass at uncertain intervals, and that wild trains may be sent out over the road, and they assume the risks of danger therefrom.”
The cases supporting the law, both State and Federal, are almost unlimited in number. Among them are, B. & O. R. Co. v. Baugh, 149 U. S. 368, 13 S. Ct. 914, 37 L. Ed. 772; Hammond v. Ry. Co., 83 Mich. 334, 47 N. W. 965; Coyne v. Union Pac. Ry. Co., 133 U. S. 370, 10 S. Ct. 382, 33 L. Ed. 651.
It follows as a natural sequence that if a section hand or trackman assumes the risk of meeting trains, he assumes the risk of the ordinary jerk resulting from sudden stopping to avoid collision with an approaching
But, ignoring the question of excessive speed for the present discussion, stopping as quickly as possible upon meeting a train under the circumstances disclosed by the facts of the instant ease (if the motor car was proceeding at a rate of speed of from fifteen to twenty miles per hour) would not result in an extraordinary jerk. There would be some danger attachéd to stopping suddenly even at that rate of speed, but the jerk so occasioned would be an ordinary one, the danger from which the plaintiff assumed as well as the risk of meeting trains en route to his work, and all other ordinary dangers incident to his employment.
Again, in the absence of negligence on the foreman’s part as between the danger resulting from sudden stopping in order to avoid collision, and the danger from collision with the train which the plaintiff testified was right upon them when he discovered it, and called out to Minter, the latter was confronted by a sudden emergency, brought about through no fault of his, and even if his judgment was erroneous this was not negligence.
This is known as the doctrine of “error in extremis,” and it has been frequently approved in Virginia. Richmond Ry. & Elec. Co. v. Hudgins, 100 Va. 409, 41 S. E. 736; Walton v. Miller, 109 Va. 210, 63 S. E. 458, 132 Am. St. Rep. 908; Pond v. N. & W. Ry. Co., 111 Va. 735, 69 S. E. 949; Wise Terminal Co. v. McCormick, 104 Va. 400, 51 S. E. 731.
In Gumz v. Chicago, St. P. & M. R. Co., 52 Wis. 672, 10 N. W. 11, where a gang of track hands under a section foreman, working with a hand car, were surprised
The court said: “It may be that the section foreman had the option of a safer course than the one he adopted; but, even then, we should not impute negligence to such mere error of judgment. Such mere error of judgment does not have within it the elements of negligence. We conclude, therefore, that where there are two or more different lines of action, any one of which may be taken, and a person of ordinary skill, in the presence of imminent danger, is compelled immediately to choose one of them, and does so in good faith, the mere fact that it is afterwards ascertained by the result that his choice was not the best means of escape cannot be imputed to him as negligence.” See also Thompson on Negligence, section 4477; Coyne v. Union Pacific Ry. Co., 133 U. S. 370, 10 S. Ct. 382, 33 L. Ed. 651.
It is obvious from what has been said that under ordinary conditions the plaintiff assumed the risk of meeting trains and of the ordinary jerk from stopping suddenly upon meeting them.
While the plaintiff’s testimony as to the speed (thirty to thirty-five miles per hour) at which the motor car was running was an estimate, yet he also testified very positively that “Mr. Minter was running awfully rapid,” he thought to keep out of the way of the passenger train. This testimony was objected to, but we
Assuming therefore that the foreman, Minter, was running at an unusual rate of speed, a speed of more than twenty miles an hour, which according to the rules of the railroad company was the maximum speed permitted, and assuming he was running at from thirty to thirty-five miles an hour, as estimated by the plaintiff, and, under these circumstances, met a train close upon him when it was discovered, and suddenly applied his brakes, thereby causing an extraordinary and unusual jerk, and by reason of this the plaintiff was thrown forward upon the track, run over and injured; then the defendant was guilty of negligence (Elliott on Railways, 3d ed., volume 4, section 1843), which was the proximate cause of plaintiff’s injury, for which the defendant is responsible in damages, unless the plaintiff by his conduct assumed the extraordinary risk. Harness v. B. & O. Ry. Co., 86 W. Va. 284, 103 S. E. 866; Chicago, etc., Ry. Co. v. Ward, 252 U. S. 18, 40 S. Ct. 276, 64 L. Ed. 430; Keathley v. C. & O. Ry. Co., 85 W. Va. 173, 102 S. E. 244; Jones v. Norfolk Sou. Ry. Co., 176 N. C. 260, 97 S. E. 48; Weldon v. S. A. L. Ry. Co., 177 N. C. 176, 98 S. E. 375; Va. Ry. Co. v. Bell, 115 Va. 429, 79 S. E. 396, Ann. Cas. 1915-A, 804.
In the first named case the court said,: “That the movement of a freight train generally is accompanied
And so the plaintiff here, while he assumed the risk of stopping suddenly when meeting trains, and the danger arising from- the ordinary jerk incident thereto when the speed was within the company’s rules, yet he had a right to assume that he would not be subjected to extraordinary or unusual jerks resulting from sudden stopping while driving at high speed.
The rule of assumption of the risk, therefore, is that an employee assumes all the ordinary risks incident to the employment. He also assumes such extraordinary risks as- are- plain and obvious. « He does not assume risks arising from the master’s negligence, or from the negligence of fellow .servants (under the Federal employers’ liability act), unless they are obvious,, or he knows of them and appreciates them and continues in the service.
In S. A. L. Ry. Co. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L.Ed. 1062, L. R. A., 1915-C, 1, Ann. Cas. 1915-B, 475, it is said: “It seems to us. that, section 4 of the employers’ liability act, in eliminating the defense of .assumption of risks in the cases indicated, quite -plainly evidences legislative intent, that in all other cases such assumption shall have its former effect as a complete bar to the action. At common law the rule is well settled that the servant assumes extra-; ordinary risks incident to his employment or risks caused by the master’s negligence which are obvious or fully known and appreciated by him.”
In Reed’s Adm’x v. Director General of Railroads, 258 U. S. 92, 42 S. Ct. 191, 66 L. Ed. 480, the railroad company maintained in its yards certain derailing switches, the purpose of which, when set against traffic, was to prevent other trains from running on its passenger tracks while occupied by passenger trains. On the day in question, the engineer and the deceased, a brakeman, were taking an engine and freight caboose through the yard, the caboose being ahead of the engine, and the deceased being on the front of the caboose for the purpose of signalling the engineer to stop if the derailing, switch was set against the passage of their train. It was so set, but either because of the negligence of the engineer in failing to watch for, or see, the signals of the brakeman, or his failure to heed them, or because of the negligence of the deceased in failing to give them in time, the train did not stop at the derailing switch, but was thrown from the track by the switch, the caboose turning over and crushing the deceased. The court, by McReynolds, J., says: “Accepting the view that the engineer’s negligence was the proximate cause of the fatal injury, the court below (Supreme Court of Pennsylvania) held the decedent had assumed the risks
“In actions under the Federal act, the doctrine of assumption of risks certainly has no application when the negligence of a fellow servant, which the injured party could not have foreseen or expected, is the sole, direct and immediate cause of the injury.”
The question now arising, in the instant case, is whether the plaintiff by his conduct assumed the extraordinary risk of defendant’s negligence in driving
Was this a question for .the jury, or, upon the facts, is it* a question of law for the court?
The answer to this question is dependent upon whether there is conflict in the evidence as to whether the negligence of the foreman and the danger arising therefrom could have been'foreseen or expected by the plaintiff, whether it was so sudden that it was not fully known and appreciated by him, or whether the want of care and the danger arising from the negligent act were so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them. C. & O. Ry. Co. v. DeAtley, supra.
The question of the assumption of the risk is usually one for the jury, but it is otherwise if the evidence discloses facts upon which reasonable minds are not likely to differ. Brown v. Riverside Coal Co., 143 Iowa 662, 120 N. W. 732, 28 L. R. A. (N. S.) 1260, 21 Am. Neg. Rep. 646; McDonald v. Chicago, St. P., M. & O. Ry. Co., 41 Minn. 439, 16 Am. Neg. Cas. 357; B. & O. R. Co. v. Baugh, 149 U. S. 368, 13 S. Ct. 914, 37 L. Ed. 772; Hammond v. Railroad Co., 83 Mich. 334, 47 N. W. 965.
The facts upon which we must determine this question in the instant ease are-testified to by the plaintiff; there is -no other testimony in the record as to them. He alone testified as 'to a speed of from thirty to thirty-five miles per hour and the sudden stopping while going-at that speed upon meeting the freight'train. He does "not say when Minter began -running * at this rate
In B. &. O. R. Co. v. Baugh, supra, Baugh, the plaintiff, was employed as a fireman on a locomotive which was manned by the plaintiff and one Hite, as engineer. The locomotive was what was called in the testimony a “helper.” The custom was for the locomotive to leave Bellaire, Ohio, attached to a freight train, which it helped to the top of the grade about thirty miles west of that point. At the top of the grade the helper was detached and then returned alone to Bellaire. There were two ways in which it could return in conformity to the rules of the company, one on the special orders of the train dispatcher at Newark and the other follow-ins some regular schedule train carrying signals to notify trains coming in the opposite direction that the helper was following it. This method was called in the testimony “flagging back.” On the day of the accident, without special orders and not following any scheduled train, the helper started back to Bellaire, and on the way collided with a regular local train, and in the collision Baugh was injured.
In the opinion of the court, at page 390 (138 Ct. 922), the case of Hammond v. Railway Company, 83 Mich. 334, 47 N. W. 965, was cited with approval, the court saying: “The party injured (in the Hammond Case) was a section hand, who was injured while riding on a hand car, in company with a fellow laborer and the section foreman, and the negligence claimed was in propelling the hand car along a curved portion of the track, with knowledge of an approaching train, and without sending a lookout ahead to give warning. In respect to this Mr. Justice Cahill, speaking for the court, says ‘But if the conduct was negligent, it was participated in by Hammond. The latter had been going up and down this section of the road daily for three months. * * * Where, as in this case, the sole act of negligence relied on is participated in and voluntarily consented to by the person injured, with full knowledge of the peril, the question of the master’s liability does not arise.’
“So in this case Baugh, equally with the engineer, knew the peril, and with this knowledge voluntarily rode with the engineer on the engine. He assumed the iisk.”
And so it seems plain that, in the instant case,
This court will, therefore, enter judgment for the defendant and dismiss the notice of motion at the cost of the plaintiff.
Reversed.