88 Va. 239 | Va. | 1891
delivered the opinion of the court.
This action is trespass on the case by the defendant in error against the plaintiff in error, the Norfolk & Western Railroad Company, for the alleged negligent killing of her intestate, J. S. (-filman, deceased. The said J. S. Gilman ivas a brakeman in the employment of the plaintiff in error, the Norfolk & Western Railroad Company, when the injury ivas inflicted upon him of which he died. An engine, pushing six loaded coal cars up a steep ascent which led up to the top of an elevated structure, called a “ coal wharf,” was run up to the top of the ascent, or nearly so, with two brakemen to man the brakes upon the coal cars. This coal wharf was twenty-five feet high and on the level 300 feet long. When some of these cars had been pushed over the ascent, and upon the level wharf, the engineer shut off steam, sounded for brakes, and upon the evidence, as we must regard it, reversed his engine. The strain thus thrown upon the coupling, by the sudden halt of the engine when fastened to six loaded cars, moving with considerable impetus imparted by the rapid motion of the engine up the ascent, caused the coupling-pin to break, and the cars and engine parted company. The object the engineman had in halting and reversing the engine was to hold the cars, so that they would remain on the wharf, and not run off at the far end, which was high from the ground, and presented a danger point. But either the pin ivas defective, or the halt too sudden, and, the engine no longer holding the cars, they rolled
The first error assigned here by the plaintiff' in error is to the action of the circuit court in overruling the defendant’s demurrer to the plaintiff’s declaration; the ground of the demurrer being that the declaration does not deny that the plaintiff was guilty of contributory negligence. In an action for damages occasioned by the negligence or misconduct of the defendant, it is not necessary for the plaintiff to allege and prove the existence of due care on his part to entitle him to recover. If the defendant relies upon contributory negligence of the plaintiff to defeat the action, he must prove it, unless,
And for the due consideration of this question, bearing in mind the well-established rule of evidence, that where the evidence is certified as in this ease, the case must stand as upon a demurrer to evidence, let us turn to a brief review of the evidence of the plaintiff, and such evidence of the defendant as is not. in conflict therewith. And we find this case: The cars were pushed up this ascent, and run upon a wharf high above the ground — a wooden structure raised twenty-five feet. They were then and always were loaded with coal when going up. Six cars loaded with coal, and in motion upon a.level 300 feet long, left but little margin for them to be stopped in by the brakes, and, if anything should happen to the engine so that they should become detached the brakes were the only hope, unless some obstruction was placed on the end of the wharf. It was proved in the evidence that the company had fastened a log at the end or near the end of the wharf by a chain attached to the middle of the log by a hook. The defendant’s own witness states that the cars, as they passed along on this -wharf, were not going faster than a man walks, their speed having been so far checked by the engine before they parted with it by the breaking of the pin, and by the brakes which had been set. But nevertheless they snapped this chain, and went over. They came against a log not bolted down, but tied with a chain in the middle, and it furnished no better safeguard than a fence-rail would have done. That the company had ordered heavy pieces of timber forty-five feet long,
And, has been often said here, nothing is better settled than that the employee takes upon himself all the natural risks and perils incident to the service, and this grows out of the contract which the law implies from the engagement of the parties. When a servant enters upon an employment, he accepts the service, subject to the risk incident to it. An employee who
Judgment affirmed.