83 Va. 512 | Va. | 1887
delivered the opinion of the court.
The case is as follows: John H. Cottrell, the defendant in error, was a brakeman on the road of the plaintiff in error in November, 1885, when, on the nineteenth of the said month, his hand was mashed off by being caught between two cars. The circumstances attending this accident were that, it being necessary to couple together some cars standing on the main track of the road and get them arranged and then moved out of the way of the regular trains on the road, one train being shortly due. An engineer named Jones was called, with his shifting engine already steamed up and ready for work, from a side track, and set about this business. The conductor of the shifting engine was present with his lantern (it being still in the night-time), and also the fireman, and the defendant in error, Cottrell, was on hand to do the coupling. There were then five stock cars among these standing cars men
The first error assigned here is the refusal of the court below to dismiss the action on account of the insufficiency in the return of the sergeant upon the original process in the case. The return is that it was executed by delivering a copy to Charles G. Eddie, vice-president, at his office in the city of Eoanoke, he being a resident of said city (the president being a non-resident, and absent, etc.); also by delivering a copy to Joseph H. Sands, general superintendent of the Norfolk & Western Eailroad Company, in the city of Eoanoke, Virginia (said Sands being a resident of said city), January 16, 1886.
Our statute (Acts 1883-84, p. 701) provides for service on
The defendant in this case was a railroad company, not a town nor a bank. The president was a non-resident, and absent. The vice-president was not the president, nor was
Whatever may be the force of this reasoning as to a city or town, or bank of circulation, the law provides, after-naming these, as we have seen, “ and if the case be against some other corporation, whether incorporated by the laws-of this State, or any other State or country, transacting business in this State, on any agent thereof;” and, further,, as if to exclude the argument that such and such an officer was not what the company called an agent, it provides, “ or any person declared by the laws of this State to be an agent of such corporation.”
While this statute appears to be cumbrous in style, and somewhat involved, it should not be so construed as to render its provisions inoperative, but so as to render the-
We have been thus explicit in the examination and construction of this statute because it must be recognized as of importance that this statute shall be understood by all; and we think it is plain that the writ may be served on “ any agent ” of a corporation doing business in this State, and such service is valid, whoever may be the officers of such company, and whatever maybe their several employments: provided, as the law provides, “service on any person under this section shall be in the county or corporation in which he resides, or in which the principal office ■of the company is located; and the return shall show this, and state on whom and when the service was, otherwise the service shall not be valid.” And we think the hustings court of Eoanoke city did not err in overruling the motion to dismiss the action on this ground.
The next assignment of error is the action of the court in overruling the demurrer of the defendant to the declaration. Upon this assignment no reliance was placed in the
The next assignment of error is the refusal of the court to give certain instructions, ten in num ber, which the court changed in some respects, gave No. 4 and No. 6 in his own handwriting, and instructed the jury in nine instructions. No objection is urged in the argument here to any of these instructions except the eighth. This is claimed to be fatally bad; that it should have been divided, and that it proceeds upon the assumption that the defendant in error did not perceive that his signals had not been obeyed just before going in between the cars, and that it concludes with the assumption that the cars were run back in such a violent and rapid manner as to confuse and frighten the defendant in error. The instruction is not obnoxious to either of these objections. There is no assumption of fact to be found in either branch of the instruction; but the law is stated, and correctly stated, upon a state of things in each case made to depend upon the finding the jury should make from the evidence. The court says: “ But if the jury shall believe from the evidence that the plaintiff made the signal to stop in proper time for the train to be stopped or reduced to a safe speed at the moment of coupling,” etc.; and, in the last clause, “and if they further believe that, on.account of the want of care on the part of the person having the management and control of the train, the defendant''» cars were run together in such a violent and rapid manner as to confuse and frighten the plaintiff,” etc. There is no assumption of anything as existing as a proved fact. The existence of every fact is properly left to depend upon the finding of the jury from the evidence. We think there is no error in this instruction, and the same must be said of them all. They correctly expound the law as applicable to this case, and there is no error in this action of the court.
The next assignment of error is for the refusal of the-
When a'servant enters upon an employment, he accepts the service subject to the risks incident to it. An employee who contracts for the performance of hazardous duties assumes such risks as an incident to their discharge from causes open and obvious, the dangerous character of which causes he had opportunity to ascertain. If a man chooses to accept employment, or continue in it, with the knowledge of the danger, he must abide the consequences so far as any claim against his employer is concerned. It is the duty of the company to exercise all reasonable care, to provide and maintain safe, sound, and suitable machinery, roadway, structures, and instrumentalities; and it must not expose its employees to risks beyond those which are incident to the employment, and were in contemplation at the time of the contract of service; and the employee has the right to presume these duties have been performed.
As has been stated, the accident in this case occurred when the defendant in error was engaged in coupling cars.
The right of the plaintiff to recover in this case is dependent on the question whether the defendant was guilty of negligence. If the injury was caused solely by the negligence of the defendant, there can be no doubt of the plaintiff’s right to recover damages for the injury; but if there was negligence on the part of the plaintiff which contributed to the injury, the law will not undertake to apportion the fault. There can be no recovery for an injury caused by the mutual fault of both parties. The mere negligence of the plaintiff, however, would not dis-entitle him to recover, unless it were such that but for that negligence the misfortune would not have happened; nor if the defendant might, by the exercise of care on his part, have avoided the consequences of the plaintiff’s
If the cars were moving at too great a rate of speed, and the plaintiff could see it and knew it, as he said he did, it-was negligence in him to go between the cars to make the coupling; and if they were not moving at too great a rate-of speed, then the company was guilty of no negligence, and the plaintiff cannot recover damages for the injury. But it is a concession that the cars were not moving at too-great a rate of speed; and it is proved that they came to a stand still when they came together, and the conductor stepped in and uncoupled them without difficulty. But it is insisted that the plaintiff signaled the cars to stop, and they failed to do this, and that this was negligence. He,, the plaintiff, says that when the train was within ten or twelve feet of him he saw it was coming too fast, and he signaled to stop it; that it did not stop, and, when near to-him, he stepped in to make the coupling, and was hurt. If he saw that none of his signals had been obeyed, it was his duty to stay out, and it was negligence for him to go-in between the cars.
But it is clear in this case that the defendant company was guilty of no negligence whatever. The cars were of" standard make, without defect; the speed was suitable and proper; the servants employed were trustworthy, and the accident which resulted in the injury was the immediate-result of the plaintiff’s own act in putting his hand awkwardly between the dead-blocks. These blocks are, as their name indicates, dangerous. They are to be avoided in all couplings, and are upon all cars. They are not in a line with nor in close proximity to the draw-heads, but they are on each side and above the draw-heads, and, while they are dangerous in themselves, they are necessary to preserve-
As was said by Green, J., Northern Central Ry. Co. v. Husson, 12 Amer. & Eng. R. Cas. 241: “It is not claimed that there was any defect in the road-bed, or the cars, or in the coupling apparatus. The injury was not the result of any defect in any of the appliances furnished by the defendant. On the contrary, it was the result of the manner in which the coupling was performed.” This coupling, under similar circumstances, is done every day with perfect safety when properly done, while, as we have already said, there are no circumstances under which the coupling could, be performed, and the hand thrust between the dead-blocks, with safety. “ It is manifestly apparent from the entire body of the testimony, as from the plaintiff’s alone, that the risk under consideration was one of the ordinary risks of the business in which the defendant in error was engaged, and hence there is no liability resulting from it.” See also Patterson v. Pittsburg & C. R. R. Co., 20 P. F. Smith, p. 293; Pittsburgh & C. R. R. Co. v. Sentmeyer, 11 Norris, 276; Baker v. Allegheny Val. R. R. Co., 14 Norris, 211; Day v. Toledo, C. S. & D. R. R. Co.,
In this case the company, the plaintiff in error, appears to be entirely without fault in the matter, and there was no just ground upon which the finding of the jury could be sustained. We are therefore of opinion that the hustings court of Eoanoke city erred in its a,ction in refusing to set aside the verdict of the jury, and for that action the judgment in this case will be reversed and annulled; and the case remanded to the said hustings court of Eoanoke •city for a new trial to be had therein.
Judgment reversed.