125 S.E. 370 | W. Va. | 1924
Plaintiff was a locomotive engineer in the employ of the defendant railway company, and while operating a locomotive engine attached to defendant's passenger train, between Hinton and Huntington, West Virginia, he was severely and permanently injured by striking his head against a mail crane erected by the defendant along the side of its right of way. The action was instituted under the Federal Employer's Liability Act of Congress. From a judgment for plaintiff, defendant obtained the present writ of error.
The act of negligence relied on is that defendant wickedly, carelessly, negligently and improperly maintained the mail crane injuring plaintiff in such close proximity to the passing engine in charge of plaintiff as to endanger the life, limbs and persons of the employees operating its trains, as a result of which plaintiff was injured.
The evidence shows that plaintiff had been in the employ of the defendant company in the capacity of a locomotive engineer for about eighteen years, and for the past two years had been engaged in passenger service over the same route on which he was injured. At the time of the accident the train he was hauling did not carry mail, but was followed by a mail train, running about fifteen or twenty minutes later, when both trains were on time. It appears that at times the first train did carry the mail car, and that plaintiff's run on this route included the operation of each of the two trains, sometimes he was on one, sometimes the other. At the time of the accident the postmaster, who was also the defendant's agent at Scary, the place where the mail crane was located, had orders from the Post Office Department to place the mail bag on the crane before the first of the two trains ran. The crane was located on the outside of a one-half of one degree *500 curve, and plaintiff's train had just entered this curve from a three degree curve turning in the same direction. The engineer's testimony is that he could not see ahead on this curve through the small window in the front of the engine cab, on account of the large boiler on the engine, and necessarily had to look from the side window. He had to observe a block signal 1157 feet ahead of the crane. He says he had about half of his face out of the window at the time his head struck the crane. David French, a civil engineer, and a witness for plaintiff, testified that he made measurements of the crane and track at the place of the accident, from which he ascertained, after being informed of the exact width of the engine cab, that the extreme point of the upper arm of the crane when extended to support a mail bag, was ten inches from the body of the cab and six inches from the edge of the wind shield placed on the outside of the cab just in front of the window. His measurements were made by dropping a perpendicular line from the extreme point of the upper arm of the crane when extended, but considering the side of the engine to be parallel to this perpendicular, without taking into account the fact that the railroad rail nearest to the crane was slightly higher than the other rail, due to the curve at that point. The defendant introduced in evidence the testimony of several witnesses who had made measurements from an engine of exactly the same type of the one operated by plaintiff at the time he was injured, by placing it on the track beside the crane. They found that the extreme point of the arm carrying the mail bag was fourteen or fourteen and one-half inches from the cab, and came to about the upper part of the engineer's chest.
The evidence further shows that the federal Postal Laws and Regulations, provide that: "At all points at which trains do not stop, where the postoffice department deems the exchange of mails necessary, a device for the receipt and delivery of mail satisfactory to the department must be erected and maintained," by the carrier; but Mr. Mayer, defendant's manager of mail and express traffic, says that the postal department has never undertaken to regulate the distance mail cranes should be set from the track. Measurements of the hooks on mail cars used to take *501 the mail from cranes show that they will receive mail bags at a distance of twenty-six inches from the car; but here no effort was made to show the width of a mail car, and whether or not it is as wide as the engine cab on which plaintiff was injured. An examination of the hook on a car used on this route tends to show that about ten inches of the outer end had not come into contact with mail bags, from the fact that the paint on that part of the hook had not been worn off; but this proves nothing as to the crane in question, for there is no evidence of the distance from the track of any other crane on this route, or of any other crane on defendant's system. It further appears that mail bags are strapped closely together at the middle, where the hook catches them, and that they are hung three and three-eights inches back from the extreme end of the crane.
Defendant contends that it was not negligent in maintaining the crane at the distance from the cab that the evidence shows it actually was located, and that, notwithstanding any negligence it might be held guilty of, the plaintiff, as a matter of law, assumed the risk, not only of all the dangers ordinarily incident to his employment, but also the extraordinary risks which he saw and appreciated, and those which were so obvious that an ordinarily prudent person must have seen and appreciated them.
On the question of negligence, from the facts in evidence, we think this a case for jury determination. While there may not be much dispute as to the fact of the location of the crane and its distance from the engine cab, the question of defendant's duty to provide plaintiff a safe place in which to work arises; and it is not the province of the court to say just what distance from its trains equipment along the right of way should be placed by the carrier in the exercise of due care to its employees operating trains; and where, as in this case, it does not appear that any federal law or regulation prescribes the distance mail cranes shall be located from the track, in view of the character of the evidence adduced on the trial, we think it was within the province of the jury to say whether or not defendant was negligent in maintaining the crane where it was located by the railroad company. Several reasons are suggested by the evidence why the accident *502 might have occurred. Plaintiff says that just before reaching St. Albans, a few miles from the place of the accident, he broke a spring hanger on the right side of the engine. At St. Albans he got out and examined the broken hanger, but decided to continue the run to Huntington, a distance of about forty miles, though he knew that he could have secured another engine at St. Albans by reporting the condition of his engine to the company. The fireman on the engine says that several times he saw plaintiff looking down and out, as the witness thought, in an effort to see the broken hanger, though plaintiff says he could not see it from the cab window. Plaintiff says he knew the effect of a broken spring hanger. There is evidence that a broken hanger would cause the engine to lean toward the side of the broken part, but how much under any given condition does not appear. It is also said that an engine running at the rate of speed this train was traveling at the time of the accident, about thirty-five or forty miles an hour, would lean towards the outside of the curve, but there is no evidence to show how far it might lean. Plaintiff says his face was half out of the cab when he was injured; and the witness Stinnett, a locomotive fireman who was riding on the engine at the time, testified that plaintiff's face projected about four or six inches from the cab window. In view of this testimony of the only witnesses who saw the occurrence of the accident, and the fact that plaintiff actually was injured by the crane, we can not say that no negligence is shown.
But, we are asked as a matter of law to hold that defendant assumed the risk of danger, because he must have known of the existence of the crane and the dangers incident to passing it. Plaintiff says he knew in a general way the location of the crane, but did not know its exact distance from the engine. It is shown that he had made five trips within a year on the other train, which regularly took mail at this point, and that in the same time he had made twenty-five trips westward on the train he was hauling the day he was injured, but it is not shown how much of that time the mail bag was placed before the first train ran. When there was no mail bag on the crane, the arm was not extended, but was up and far from the engine. There is no evidence as to how far from the cab *503
other cranes on plaintiff's run were located, and it appears that they could have been located at a farther distance and at the same time close enough for the mail bag to be reached by the hook on the mail car. If, in fact, the crane causing the injury was closer to the engine than the other cranes, and it should appear that plaintiff, each day he made the run from Hinton to Huntington, passed a number of cranes, could it be said that he must know how far, in the discharge of his duties, he could extend his head at each particular crane without danger, when riding at a rapid rate of speed? We think not. Generally, the question whether plaintiff appreciated the dangers and risks of his employment, and assumed them, is for the jury to determine. Griffith v. B. O. R. R. Co.,
Defendant relies mainly on the case of Southern PacificCompany v. Berkshire,
At the instance of plaintiff the court gave to the jury the following instruction:
"The court instructs the jury that when one enters a hazardous employment he assumes the ordinary risks thereof, but does not, either at common law or under the Federal Employer's Liability Act, assume risks created by his employer's negligence, unless he has knowledge, either actual or constructive, of such negligence, and an appreciation of the danger therefrom, and enters or continues in such employment under such circumstances. And the court instructs the jury that, if they find from the evidence in this case, that the defendant Railway Company did not use ordinary care to provide a reasonably safe place for the plaintiff to work at or in, but negligently constructed and maintained the mail crane involved in this suit unnecessarily and unreasonably close to its tracks and equipment, and as a direct result thereof plaintiff was injured thereby, and that, although the plaintiff knew in a general way the location of said crane, but did not know its actual distance from the tracks and equipment of the plaintiff and did not appreciate the danger incident thereto, then, and in that event, they will find for the plaintiff, and assess his damages at such an amount as will reasonably compensate him for his physical and mental injuries resulting therefrom, including pain and suffering, not to exceed $50,000.00. If, however, the jury should find that the plaintiff was guilty of contributory negligence, then and in that event, while contributory negligence would not defeat his right of recovery, the jury should reduce his damages in the proportion that his negligence bears to the whole negligence in the case."
This was the only instruction requested by plaintiff.
Defendant complains of that part of the instruction reading as follows: "And that, although the plaintiff knew in a general way the location of said crane, but did not know its actual distance from the tracks and equipment of the defendant, and did not appreciate the danger incident thereto, *505
then, and in that event, they will find for the plaintiff." On entering the service of the master, the servant assumes all the ordinary risks of such service, and also, as a general rule, all risks from causes which are known to him, or should be readily discernible by a person of his age and capacity, in the exercise of ordinary care. 9 Enc. Dig. Va. W. Va. Rep. 695;Id. 4 Cum. Sup. 520, and numerous cases cited. See, also, the following federal cases: Gila Valley Ry. Co. v. Hall,
Over the objection of defendant the plaintiff was permitted to introduce evidence of the distance of one crane from the track of the B. O. Railroad at Ceredo, W. Va., and one crane at Prichard on the N. W. Railway. In Bowles' Admr. v.Virginia Soapstone Co.,
Error is assigned on the part of the trial court in entering judgment for interest from the date of the verdict. Defendant insists that interest should run only from the date of the judgment. In Wehrle v. Traction Co.,
Our conclusion is to reverse the judgment of the circuit court, set aside the verdict of the jury, and remand the case for a new trial.
Reversed; verdict set aside; case remanded. *508