78 Va. 745 | Va. | 1884
delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of the city of Richmond, rendered on the 21st December, 1881, in a suit in rí’hich E. B. Spencer, administrator of George Moon, deceased, is plaintiff, and the Richmond and Alleghany Railroad Company is defendant.
The action is for recovery of damages from the defendant company of $10,000 for the killing of the plaintiff’s intestate, George Moon, by the negligence of the said company, and through no contributory negligence of the said
On Monday morning, July 25th, 1881, a material train, which, on Saturday next before, had been run up to Joshua Falls, was started down the road, running backwards, with the engine and tender not turned around, but simply detached from the front of the train and coupled at the rear, the pilot of the engine being attached to the rear car, which was the captain’s caboose car.
George Moon was one of a party of colored men who had been engaged for this company, in Halifax county, by Captain W. R. Thompson, the conductor on this train, and Moon had been put under his charge and orders, and re
Upon this state of facts the plaintiff’s attorney moved the court to instruct the jury as follows, viz: I. “ If the .jury believe from the evidence in this case that Conductor W. R. Thompson had general charge and control of the train men, assigning them to such duties as he thought proper, and general control over the coupling and make-up of his train, and that the accident of July 25th, 1881, was ■caused by any negligence in the management of making up his train, the company is liable therefor, and they must find for the plaintiff.”
We think that this instruction should have been given as asked; and the court erred in refusing to give it. It was certainly encumbent on the defendant company, upon the facts shown by record, to show, affirmatively and posi
And we think the second instruction: “ If the jury shall believe from the evidence that the accident was caused by any negligence or want of skill on the part of Herndon, the section foreman, in failing to signal the train, or in failing to have the track in safe condition at the place of the accident, the company is liable, and they must find for the plaintiff,” was correct, and ought to have been given by the court. Herndon, the section master, in charge of a squad of hands working, altering and repairing the road, could in no sense be regarded a fellow-servant in the same common employment, or department of service with Moon, who was a train hand and brakeman. Connolly v. Davidson, 15 Minn. 519. They were not co-employees, thrown together in a common duty, and having opportunity to observe and judge of the habits and qualifications of each other. Lewis v. St. Louis, &c., Railroad Co., 59 Mo. 495 ; Ryan v. Chicago and N. W. Railroad Co., 60 Ill. 171. And where a company delegates to an agent or employee the performance of duties which the law makes it encumbent on the company to perform, his acts are the acts of
The fellow-servant or co-employee for whose negligence the company is not liable, is one who is in the same common employment—that is, in the same shop, or placed with, and having no authority over, the one injured—and who is no more charged with the discretionary exercise of powers and duties imperatively resting on the company than the injured party; but where a person is placed in charge of the “ construction or repair of machinery,” the “ dispatching of trains,” the “ maintenance of way,” &c., he is not a fellow-servant with those under him, nor with those in a different department of the company’s service. He is the agent of the company, which has assumed, through him, the performance of duties which are absolute and imperative; the omission or the negligence of performing which the law will in nowise excuse, Clarke v. Holmes, 7 Hurls. & Nor. 937; Ford v. Fitchburg R. R. Co., 110 Mass. 241; Hough v. Railroad Co., 10 Otto, supra.
The third instruction asked for by the plaintiff, covering the case of the accident being caused by the insecure condition of the track below where Herndon was at work, and the fourth instruction, whether it was at or below his
The court declined to give the instructions asked for, and, in lieu thereof, gave three instructions of its own, as follows—viz:
First. “ The jury are instructed that they should find for the defendant in this cause, unless they believe from the evidence that the death of the plaintiff’s intestate was caused by some wrongful act, neglect or default of the defendant corporation.”
This instruction is correct as a proposition of law, but following the refusal of the court to give the instructions which had been asked by the counsel for the plaintiff, it should have concluded with the addition of “ or its agents.”
The second instruction given by the court was : “ And the jury are further instructed, that if they believe the accident which caused his death was occasioned by any negligence of Herndon, the section foreman, in failing to signal the train, they cannot impute such negligence in this case to the defendant, and should find for the defendant.” This instruction is erroneous, and is against law and reason •alike. It assumes that an employee “takes all risks,” when in law his contract is based on the implied duty and undertaking of the company to provide safe and adequate machinery, competent and vigilant agents, and to keep its roadway and structures always in good and safe condition, when he is required to go over them. Chicago and N. W. Railroad Co. v. Jackson, 55 Illinois, 492; Corcoran v. Holbrook, 59 N. Y. 517; Baxter v. Roberts, 44 Cal. 187; Snow v. Housatonic Railroad Co., 8 Allen, 441; Lewis’ Adm’r v. St. Louis and Iron Mountain Railroad, 59 Mo. 49; Patteson v. Pittsburg and Connellville Railroad, 76 Penn. 389; Drymala v. Thompson, 26 Minnesota, 40; Moore’s Adm’r v. R. and D. Railroad, 8 Va. L. J. 84. As to statutory obligation upon the defendant, R. and A. R. R.
The third instruction given by the. court was : “ It was the duty of the defendant to maintain its track and roadway in good and safe condition; but if the jury shall believe that the roadway had been constructed in a safe condition for public travel, and that the deceased entered into the service of the company with knowledge that it was a new road, and the jury shall further believe that the accident was occasioned by any condition of the track incident to a new road, which the defendant by the exercise of diligence and care could not have avoided, they should find for the defendant.”
The evidence in the case affords no basis for this instruction. Hoskins, the defendant’s witness, said accidents cannot always be prevented or foreseen, in the case of a railroad whose bank or embankment is “green” or new; but he, and all the witnesses, stated that this was not the case here. It was an old, settled, tow-path embankment, which had been tramped for forty years, on which no new dirt had been put, but which the tracklayers had only surfaced up a little as they went along. And the instruction is erroneous, also, in that it excludes the liability of the defendant for the unsafe condition of the track made by the alteration of the level of the outside rails by the section-master and his party, and the incomplete condition of this operation, at the moment when lie stood by and deliberately failed to give the usual and expected flag-signal to the oncoming train, which, from“the testimony of the defendant’s own engineer in charge and witness Haffner, would have prevented the accident and consequent death of the plaintiff’s intestate, Moon, and two others.
The court erred in overruling the motion for a new trial. Under the instructions given, and the refusal to give the instructions asked by the plaintiff, the jury could not find
The judgment of the circuit court of the city of Richmond in this case must be reversed and annulled, and the case rémanded for a new trial in said court, in accordance with the views herein expressed.
Hinton, J., concurred in result.
Judgment eeveesed.