107 Va. 340 | Va. | 1907
delivered the opinion of the court.
This action was brought by the administratrix of O. E. Belcher against the Horfolk & Western Railway Company to recover damages for the alleged negligent killing of the plaintiff’s intestate. The trial resulted in a verdict and judgment for $2,000 in favor of the plaintiff, which we are asked by the defendant company to review.
The petition assigns as error the action of the circuit court in overruling the demurrer to the declaration; its action in re-, fusing to strike out certain words in tlje declaration alleged to be objectionable; its action in giving and refusing certain instructions; and its action in overruling the motion of the defendant company to set the verdict aside as contrary to the law and the evidence. All of these assignments of error involve but one proposition of law, which, in our view of the case, can be best considered in connection with the facts applicable thereto.
The plaintiff’s intestate was an employee of the defendant railroad company, about seventeen years of age, engaged as a section hand on the railroad yards at Horton, in Wise county. An approaching train made it necessary for the deceased and a co-laborer to leave the track upon which they were working for the train to pass. “ They stepped to a place of safety, clear of all tracks, but the deceased, for some unexplained reason, immediately left his position of safety, against the remonstrance of his fellow-workman, crossed the track which he had just left, in front of the approaching train, and took his stand in the center of a parallel track, with his back to an approaching switching engine, which was pushing six cars toward him, and within sixty feet of the nearest car. The fireman on the passing local train saw the dangerous position of the deceased, and called to him, but he paid no attention, seeming to be oblivious of his peril. The engineer of the backing switching train did not see the deceased, and his brakeman did not see him until within
The contention of the plaintiff is that it was the duty of those in charge of the backing switching train to keep a lookout to discover persons on the track at the place where the accident happened. In other words, the negligence of the deceased, in leaving his position of safety and putting himself in a place of danger, is, as it must be, conceded; but the doctrine of the last clear chance is invoked in order to fix liability upon the defendant. This theory of negligence on the part of the servants of the defendant, after they discovered, or by keeping a lookout might have discovered, the peril of the deceased, was maintained by the circuit court throughout its rulings on the trial. The fact is established in this case that the engineer in charge of the switching train did not see the plaintiff’s intestate at all, and his brakeman did not see him until the car was within a few feet of him.
It is undoubtedly a well-settled general rule, that it is the duty of a railroad company to keep a lookout at all places where passengers and strangers are to be expected upon the track, and that it is liable for injuries which, by the use of ordinary care might have been averted, after the peril of the person injured was discovered, or by the use of ordinary care, might have been discovered. But there is no sufficient reason for enforcing this rule without limitation in a railroad yard, where all of the employees have equal knowledge of the constant shifting of cars in making up trains, and equal facilities for looking out and protecting themselves from the dangers naturally incident to such work. If those in charge of a switching train see an employee in danger, from which there is reason to believe he will not remove himself, they must’do all that can be reasonably done to protect hinn They cannot wilfully injure him. But they are justified in presuming that the employees on a railroad yard, who are familiar with the constant movements of
At the time of the accident, the engineer was backing the cars for the purpose of placing them upon the “house track.” The brakeman had to give him a signal when that track was reached, and his attention was fixed upon the brakeman, watching for that signal. Under these circumstances, it would have been difficult for either engineer or the brakeman to have had their eyes upon the track when the deceased placed himself upon it.
In the very similar case of Aerkfetz v. Humphreys, 145 U. S. 418, 36 L. Ed. 758, 12 Sup. Ct. 835, Mr. Justice Brewer, resting the opinion of the court upon the ground that, under the circumstances, there was no negligence on the part of the defendant, says: “The plaintiff was an employee, and, therefore, the measure of duty to him was not such as to a passenger or a stranger. As an employee of long experience in that yard, he was familiar with the moving of cars forward and backward by the switch engine. The cars were moved at a slow rate of speed, not greater than that which was customary, and that which was necessary in the making up of trains. For a quarter of a mile east of him, there was no obstruction, and by ordinary attention, he could have observed the approaching cars. lie knew that the switch engine was busy moying cars and making up trains, and that at any minute cars were likely to be moved along the track upon which he was working. With that knowledge, he places himself with his face away from the
“It is, therefore, said in section 1258 of Elliott on Kailroads, that ‘As to employees, the company is under no obligation to ring the bell or sound the whistle upon a switching engine, engaged in making up trains in its yard, for the purpose of notifying such employees, who are familiar with the operation of the yard.’ Aerkfetz v. Humphreys, 145 U. S. 418, 36 L. Ed. 758, 12 Sup. Ct. 835.
“As was said by this court in Darracott v. C. & O. Ry. Co., 83 Va. 294-5, 2 S. E. 511, 5 Am. St. Rep. 566, ‘There are certain correlative duties on the part of the employee to the company; one of these is to use ordinary care to avoid injuries to' himself; for the company is under no greater obligation to care, for his safety than he is himself, and he must inform himself, so far as he reasonably can, respecting the dangers as well as the duties incident to the service. And in general, any negligence of an employee amounting to the want of ordinary care, which is the proximate cause of the injury, will defeat an action against the company.’ ”
Under the facts and cimimstances of this case, and in the light of the authorities cited, we are of opinion that the servants of the defendant company were not negligent in failing to keep a constant lookout, in anticipation that the deceased would
We are of opinion that, upon the facts disclosed by the record, the defendant company was guilty of no negligence, and that the accident occurred solely from a lack of proper attention on the part of the deceased. The judgment must, therefore, be reversed, the verdict set aside, and the case remanded for a new trial, not in conflict with the views expressed in this opinion.
Reversed.