134 Va. 356 | Va. | 1922
delivered the opinion of the court.
This action, to recover damages for personal injuries sustained by the plaintiff while engaged in the service of the defendant in interstate commerce, was brought under the Federal employers’ liability act of April 22, 1908, as amended (U. S. Comp. St. §§ 8657-8665). The case made out is under the fourth count of the amended declaration.
The defendant demurred to the plaintiff’s evidence, and there was a verdict for the plaintiff for the sum of $31,000, subject to the court’s decision on the demurrer. The demurrer was overruled, and judgment entered upon the verdict, which judgment we are asked to review.
The defendant relies upon nine assignments of error, but in our view of the case it will be necessary to consider only three questions — (1) The admission of certain evidence, (2) the negligence of the defendant, and (3) the assumption of the risk by the plaintiff. , '
At the time he was injured, Souder was the conductor
The foregoing is the plaintiff’s version of the accident, given at the trial. In his letter to the solicitor of-the defendant, dated May 12, 1920, plaintiff says: “I stepped on the abutment stone of the Rivanna bridge, the stone being covered with green vines my foot slipped and I went down the precipice and struck a telegraph pole which broke the femur bone of my left leg.”
Under the employers’ liability act, a recovery can be had only when the action is based on negligence. Seaboard R. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915-C, 1, Ann. Cas. 1915-B, 475; A. O. & N. E. R. Co. v. Harris, 247 U. S. 367, 371, 38 Sup. Ct. 535, 62 L. Ed. 1006, 1 A. L. R. 1278.
In the case of Patton v. Texas Pac. R. Co., 179 U. S. 663, 21 Sup. Ct. 277, 45 L. Ed. 361, the court said: “The fact of accident carries with it no presumption of negligence on the part of the employer; and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence. * * * It is not sufficient for the employee to show that the employer may have been guilty of negligence; the evidence must point to the fact that he was. * * * If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many eases in which the plaintiff fails in his testimony.”
In the case of Looney v. Metropolitan R. Co., 200 U. S. 480, 26 Sup. Ct. 303, 50 L. Ed. 564, the law is stated thus: “In an action for damages for personal injuries * * the plaintiff must establish the ground of the defendant’s liability * *. Negligence of the defendant will not be inferred from the mere fact that the injury occurred, or from the presumption of care on the part of the plaintiff. There is equally a presumption that the defendant performed his duty.
The plaintiff, the only witness who testified as to conditions at the point where the accident occurred, gave certain opinions and conclusions of law which were improperly allowed to go to the jury over the objection of the defendant. Among them may be mentioned the following: “The wall was supposed to be kept in a safe condition;” the place at which he got.off “was a safe place;” he thought “there would have been no danger in getting off on the wall if there had not been rolling cinders there;” the wall “was not a proper place for cinders
In 22 Corpus Juris, page 514, we find this: “A mere supposition of a witness as to what would have happened if something had occurred which did not, or something had not occurred which did, or whether a certain thing could have happened under certain circumstances, which the witness says did not exist, will ordinarily be rejected as involving too large an element of conjecture.” And at page 512 of the same work it is said: “The rule also precludes characterizing acts or conduct as careful, careless, cautious, dangerous, good management, in the line of duty, necessary, negligent, omitting anything possible, practicable, proper, prudent, reasonably safe, skillful, usual or unusual.”
In Virginia-Carolina Chemical Co. v. Knight, 106 Va. 674, 56 S. E. 725, it is said: “ ‘No principle of law is better settled,’ as was said in the case of Southern Ry. Co. v. Mauzy, 98 Va. 692, 694, 37 S. E. 285, 286, .‘than that the opinions of witnesses are in general inadmissible, that witnesses can testify to facts only and not to opinions or conclusions based on facts.’ ”
In Norfolk, etc., R. Co. v. Suffolk Lumber Co., 92 Va. 413, 23 S. E. 737, a witness was asked the following question: “Mr. Cannon, if there had been any signal post with signal and a watchman, as the contract requires, could there have been any accident on that occasion?” to which the witness replied: “I think not.” The court held that the admission of this question and answer was error.
The declaration charges that the defendant in the work of repairing the bridge, carelessly and negligently caused the cinder ballast of the roadbed to be worked out on the wall at said bridge on the east side of the river
In discussing the duty of the master to provide a safe place, in 26 Cyc. 1148, the author says: “The rule as to the duty of the master with regard to the place of work, machinery and appliances, does not apply in cases in which the work the servant is engaged upon consists in making repairs.”
In 18 R. C. L., page 595, this is said: “An exception to the rule requiring the employer to make safe the place where his employees are at work is said to exist where the conditions of the place are constantly changing as the work progresses; and it is obvious that the rule can have only a modified application, if indeed any at all, where the employee is required to make the place safe, or is engaged in putting it in proper repair.”
In Jacoby Co. v. Williams, 110 Va. 55, 65 S. E. 491, this court held that the general rule that a master must use ordinary care to provide his servant a reasonably safe place in which to work does not apply to a place which is constantly changing by reason of work being done.
On a demurrer to the evidence, the court is not obliged to accept as true that which it knows judicially to be untrue.
' [8, 9] It is immaterial whether the cinders on the wall worked out from the ballast — which the plaintiff has
The record fails to disclose any evidence which shows that the defendant was guilty of negligence which proximately contributed to the injury eompalined of.
One of the grounds of the demurrer to the evidence, assigned by the defendant, is that the plaintiff assumed the risk of the injuries complained of. The plaintiff contends that a servant does not assume the risk of the master’s negligence, but only assumes the risks naturally incident to the employment.
It plainly appears that the plaintiff has been in the railroad service for twenty years, and has served as train conductor for many years. He knew that the defendant’s railway tracks was ballasted in some places with cinders, that the movement of trains over a railroad track would cause any ballast to work out from under the ties, to some extent; and that all railroad locomotives fired with coal would emit sparks and cinders, some of which would fall on the roadbed, and admits seeing the thin coat of cinders on the retaining wall before the date of the accident. While assumption of risk
There is no evidence upon which the jury could properly find a verdict for the plaintiff.
The judgment complained of is erroneous and will be set aside and a final judgment entered here for the defendant.
Reversed.