90 Va. 665 | Va. | 1894
delivered the opinion of the court.
The action was for injuries to the person, by Archie B. Phelps against the plaintiff in error company. The injuries were received by the plaintiff, Phelps, while in the discharge of his duty as “ hostler”; that is, an employee who receives and takes
If the injury was caused by negligence, whose was it? Han-nagan’s, beyond a doubt. He did not err on the side of safety, but recklessly, in his unexplained haste, ordered Phelps forward, and undertook to know that there was no danger, perhaps because he had not yet thrown the switch for Rowsey. He did not know how close Rowsey would come to that switch in the darkness, especially as there were no danger posts there, or, if there, invisible in the darkness; He knew that Rowsey had only a limited control of the cars he was on — he could stop them with the brake, but he could not move them back at all, nor stop them very promptly either. He was there representing the company, and he doubtless knew the grave responsibilities resting on him — that Rowsey was, in obedience to his orders, coming that way — and he sent Phelps forward with an order he was bound to obey. He knew that at a switch the two tracks for a short space are intermingled, and that there was danger of collision in passing, if the box cars should come too close, and that the switch could not prevent them from coming too close for safety, as it did not in this case. Rowsey had not violated the switch, and yet he had reached the danger point. It cannot be said that Rowsey was guilty of any negligence. He had been told to drop them along down slowly, and Hannagan would come in and get them; and he doubtless was expecting Hannagan to throw the switch and let him out, or come in andgethim; and he was going very slowly — barely moving. But, if he was guilty of negligence, it does not alter the
Judgment aeeiRmed.