104 Va. 547 | Va. | 1905
delivered the opinion of the court.
This is the sequel to the case of Moore Lime Company v. Johnston's Administrator, 103 Va. 84, 48 S. E. 557. We refer to that opinion for a discussion of the evidence, as it then appeared in the record. For reasons there set forth the case was, upon the petition of the Moore Lime Company, reversed and remanded for a new trial. Upon the new trial there was a demurrer to the evidence, .a verdict of the jury in favor of Johnston’s administrator, and a judgment upon the demurrer in favor of the Moore Lime Company; and the proceedings culminating in the lafter judgment are before us for review.
Counsel for plaintiff in error fully concedes the correctness of the former judgment of this court, and- the conclusive force of the reasoning upon which it was based, but insists that the record now before us entitles his client to a recovery.
After a careful review of the evidence, we are of opinion that it presents a case which should have been submitted to the jury, both upon the question of the negligence of the defendant in error, and upon the allegation of contributory negligence on the part of plaintiff in error’s intestate.
There is evidence which tends to prove that upon the morning of the accident the young man, whose death is the subject of this suit, had gotten up steam in his boiler; that there was the proper gauge of water in the boiler; that the steam had not been turned on the machinery; and that the machinery and no part of it had been put in motion; that, having gotten up the steam and while waiting for the signal to turn it on, he had “cracked the valve” — that is to say, he had opened it slightly so that the water which had accumulated in it from the preceding Saturday might gradually escape; that it was necessary to do this, and that it was done in the accustomed manner. It appears that the accumulation of water was the necessary result of the condensation of the steam which was in the pipes on the preceding Saturday, and that the cold weather then prevailing had frozen
Upon these facts, considered as upon a demurrer to evidence, we are of opinion that the verdict should not have been disturbed. The jury was doubtless of opinion that the machinery had been rendered unsafe by the removal of the drip> cock, and that in removing it the Moore Lime Company had failed in its diitv to exercise that reasonable care to provide reasonably safe instrumentalities which the law imposes; and they were further of opinion that the change which rendered the throttle valve unsafe did not constitute a danger so open and obvious as to convict the employee who used it of contributory negligence, and of contributory negligence in any other aspect of the case there is no evidence .whatever.
It is proper to observe that the evidence upon the last trial of this case varies in several material respects from that which was given on the first trial, which was found insufficient to maintain the verdict. Especially is this true with respect to the drip
We are of opinion that the judgment should be reversed, and this court will enter judgment upon the verdict for plaintiff in error.
Reversed.