99 Va. 132 | Va. | 1901
delivered the opinion of the court.
This action was brought by the plaintiff in error to recover damages for injuries received by him whilst in the service of the defendant company as a brakeman on one of its freight trains. The declaration contains three counts, each of which was demurred to. The court held the first count to be good, and sustained the demurrer to the other counts, which are substantially alike in -all material respects, upon the ground that each of them showed upon its face that the act of a fellow-servant was the proximate cause of the injury complained of.
If it were conceded that those counts were good, and that the demurrer ought to have been overruled, we do not think that the plaintiff was prejudiced by the court’s action. Whilst the second and third counts set out more in detail some of the grounds relied on to show negligence on the part of the defendant company than is done in the first count, yet the averments of that coimt were clearly sufficient to entitle the plaintiff to offer in evidence any fact which was admissible under the second and third counts. This being so, the action of the court in sustaining the demurrer to those counts, if erroneous, must be regarded as harmless error. Childress v. C. & O. Rwy. Co., 94 Va. 186; 6 Am. & Eng. Enc. Pl. & Pr. 356.
The next and only other assignment of error is the court’s refusal to give instructions numbered 4 and 5 offered by the plaintiff, and which are as follows:
“4. If the jury believe from the evidence that the conductor*138 acquired knowledge of the defective and unsafe condition of the coupling before McCoy attempted to make it; then the conductor was the representative for the company in respect to this matter, and his knowledge became in law the knowledge of the Norfolk and Carolina Railroad Company itself; and, even though they shall further believe from the evidence that a fellow-servant of the plaintiff was guilty of negligence in signalling the engineer to back the train, and such negligence contributed to the injury received by infant McCoy, yet if they believe that the felloWTservant’s negligence, concurring with the negligence of the defendant railroad company in failing to maintain safe and sound couplings and appliances produced the injury, this concurring negligence of the fellow-servant does not operate to relieve or diminish the liability of the Norfolk and Carolina Railroad Company, and it is liable for the injuries as though it only were at fault.”
“ 5. If the jury believe from the evidence that, at the time of the injury to the plaintiff, McOoy, there was trouble with the coupling which the said plaintiff was ordered to make, and that the conductor, knowing the fact, ordered him to substitute a link and pin for the defective automatic coupling, which said order could only be carried out by using the hands; that a fellow-servant prematurely and without warning to the plaintiff, infant McCoy, gave the signal to the engineer to back, and that the said injury was occasioned by this default of the fellow-servant concurring with the negligence of the defendant company in having defective couplings, they must find for the plaintiff.”
The rule of law is well settled, that where the servant is injured through the failure of the master to perform any of the duties which the law imposes on him personally, such as providing, inspecting, and keeping in repair and good order reasonably safe and suitable machinery, instrumentalities and appliances for the use of a servant in his employment, and such
But to establish a case of concurring negligence in which the master will be held liable, notwithstanding the negligence of the fellow-servant, it must appear that the master’s negligence proximately contributed to the injury. If the injury resulted from a certain wrongful act or omission, but only through or by some intervening cause, from which last cause the injury follows as a direct and immediate consequence, the law will refer the damages to the last or proximate cause, and refuse to trace it to that which is remote. Cooley on Torts, p. 73; N. & W. Rwy. Co. v. Brown, 91 Va. 668, 672-3; R. & D. R. Co. v. Tribble’s Adm’r, 24 S. E. R. 278, 279.
The instructions under consideration do not clearly, if at all, bring this distinction to the attention of the jury. • Erom their language, the jury might very well have believed, at least were not precluded from believing, that the plaintiff would be entitled to recover if the evidence showed that the defendant’s negligence in failing to maintain safe couplings caused the cars to separate, and thereby made dit necessary for the plaintiff to reeouple them, thus remotely contributing to his injury, or furnishing an occasion for it, although they might have further believed that the negligence of a fellow-servant in backing or causing the train to be backed suddenly and unexpectedly would have caused the injury even if the coupling had not been defective.
The rejected instructions, if not erroneous, were misleading, and the court did not err in refusing to give them.
The instructions given covered the case, we think, and were as favorable to the plaintiff as he was entitled to.
Xeither of the assignments of error being well founded, the judgment of the Circuit Court must be affirmed.
Affirmed.