103 Va. 356 | Va. | 1905
delivered the opinion of the court.
The administratrix of W. J. Cheatwood, deceased, brought this action in the Corporation Court of the city of Radford, alleging- that the death of her intestate was due to negligence of the defendant, the Norfolk & Western Railway Company, and recovered a judgment for $6,250.00, to which the defendant obtained this writ of error.
Viewed as upon a demurrer to the evidence, the case before us is as follows:
Cheatwood,'the deceased, was, on the 10th day of July, 1903, and ha'd been for at least twelve years prior, in the employ of the plaintiff in error on its yard at Radford, as assistant “hostler.” Upon the yard, among other things, were a round-house, water-tank, sand-house and coal-wharf. The duties of the deceased, among others, were to assist the “hostler” in taking-engines over the yard, getting coal, water and sand, and running them back to the íound-house. In doing this he opened and closed the switches, and gave signals to the “hostler” for starting and stopping at the proper places. There was no rule of the company prescribing the place where he should ride on the engine, and when the engine was moving forward, the usual place occupied by him and other employees performing the same duties, was on the step on the right-hand side of the pilot at the front of the engine; and, when moving backward, on a step on the same side of the tender, at the rear end, which, when moving backward, was in front, and which positions were the most convenient for the assistant “hostler,” and the usual position occu
A number of years prior to the accident resulting in the death of Cheatwood, a sand-honse was built on the north side of one of the tracks in the yard, and at a distance from the track which was free from danger to employees riding on the outside of the engines and tenders which were then in use, the plaintiff in error then using tenders holding only four thousand (4,000) gallons of water. There were four steps on each tender, one at each corner, all alike, and the steps projected from the sides of the tender to about nine and one-half (9-]-) inches from the sand-house, when passing it. Afterwards, and perhaps a year or more (just when does not appear) before the accident to Cheatwood, plaintiff in error increased the size of its tenders, so that they would hold five thousand (5,000) gallons of water, which was accomplished by extending the sides of the tenders until they were flush with the inside of the steps, the steps being seven and a half (L]*) inches wide, but the distance of the steps from the centre of the track, and consequently from the sand-house, was not changed. Later, plaintiff in error increased the size of some of its tenders, so as to hold six thousand (6,000) gallons of water, this being accomplished by again extending the sides until they became flush with the outside of the steps, which still remained nine and one-half (9-|) inches from the sand-house, but practically under the tender, as the outside of the tender was flush -with the outer edge of the steps. On the rear end of the tender was a cross-beam eight and three-fourths (8§) inches wide, extending the width of the tender. This was reached by a hand-hold on the corner of the tender, extending from the sill to within twelve or fourteen inches of the top of the tender, and by catching this hand-hold a person could get up on the steps and from there could step to the cross-beam, and when standing there could hold by this hand-hold, or to the top of the tender/ which was about as high as an ordinary man’s head.
At the trial, and after the introduction of all the evidence, the court at the instance of the defendant in error, plaintiff below, gave six instructions to the jui-y, all of which were objected to by plaintiff in error, except Eo. 6; and the plaintiff in ez-z*or, defendant below, asked for five instructions, to each of which defendant in error objected, and Eos. 1 and 2 were refused and Eos. 3, 4, and 5 amended. The court also, of its
Instructions Nos. 1 and 2, asked by defendant in error, are as follows:
Instruction No. 1.
“If the jury believe from the evidence that W. J. Cheatwood came to his death by being crushed between the tender of an engine and the sand-house of the Norfolk & Western Railway Company, located dangerously near the coal wharf track of said railway, if they believe from the evidence it was so located, on its yard at East Radford, and at the time of the injury he was riding on said tender in the course of his employment at his post of duty, and was injured without fault on his part, they must find for the plaintiff and assess her damage accordingly, although they may believe from the evidence that plaintiff knew of the location of said sand-house with reference to said track.”
Instruction No. 2.
“The jury are further instructed that it was the duty of the defendant company to use reasonable care to furnish to plainliff’s intestate a reasonably safe place in which to work and reasonably safe appliances, machinery, ways and structures, and the knowledge by said intestate, W. T. Cheatwood, of the defective or unsafe character or condition of any machinery, ways, appliances or stmetures shall be no defense to an action for an injury caused thereby, such as an injury resulting from a sand-house being located too near to its railway track, when running engines and tenders of the size of engine and tender No. 111, should thé jury believe from the evidence that the said sand-
The chief objection urged to No. 1 is that there was no evidence on which to found the second proposition contained therein, to-wit: that Oheatwood at the time of his injury was at his post of duty.
We do not think that this is a valid objection to the instruction, as there was abundant evidence, as we shall see when we come to review it, tending to show that Oheatwood was at his post of duty, and certainly enough to submit the question to the jury, which was in fact the purport and effect of the instruction. The term in the instruction “dangerously near the track” was to be considered in the light of the evidence, and while there was in fact no defect in the construction of the tender or sand-house, the question submitted to the jury was whether or not the situation had been made dangerous by the enlargement of the tender upon which Oheatwood was riding, known to plaintiff in error but not to Oheatwood, and when the instruction, was read in connection with the other instructions it was not open to the objections which plaintiff in error makes to it.
It is conceded that the first part of instruction No. 2 correctly defines a master’s duty in 'furnishing appliances and structures. It then states that the servant’s knowledge of the defects is no defense to an action for injuries caused thereby, and it was clearly the purpose of the instruction to tell the jury that it was negligence to run such an engine as No. 771 by the sand-house, if they believed from the evidence that the sand-house was located too near the track, and was for that reason unsafe. Here again the instruction was to be interpreted in the light of the evidence, which tended to show the negligence of plaintiff in error in placing upon its yard to be handled by its employees an engine of so much larger size than that which Cheatwood and other employees had been in the habit of handling that it ren
The court is further of opinion that there was no error in giving the 3rd and 4th instructions asked for by defendant in error, which are as follows:
Instruction No. 8.
“If the jury believe from the evidence that plaintiffs intestate, in the proper discharge of his duty, was accustomed to ride engines and tenders through the space between the sand-house and track in question in safety, and that the defendant company without notice to him, caused him to ride, on the night he was injured, an engine with a tender broader than engines and tenders he had been accustomed to handle, and which increased the danger, and thereby made it unsafe to ride said engine by said sand-house to him when so riding, and that this was the proximate cause of his death, without fault upon his part, then the jury must find and assess damages for the plaintiff”
Instruction No. A
“If the jury believe from the evidence that for years the switching or Assistant Hostler, Cheatwood, of the Norfolk & Western Railway Company, all the years at Radford, had been safely riding engines and tenders by this sand-house, moving and headed in the same direction as was the engine and tender on the night of July 10, 1903, W. J. Cheatwood received the injuries which caused his death, and believe from the. evidence that said Cheatwood had had no instructions not to ride on the
Instruction lío. 5 given for the defendant in error, is as follows:
Instruction No. 5.
“The jury are instructed that if they find damages for the plaintiff; in ascertaining such damages, they should find the same with reference, first: to the pecuniary loss sustained by Sallie Oheatwood, his wife, and the three children of W. J. Oheatwood by the death of said Oheatwood, fixing the same at such sum as would be equal to the probable earnings of the said Oheatwood, taking into consideration the age, business capacity, experience, habits, health, energy and perseverance of the deceased, during what would probably have been his lifetime if
The instruction is in a form which has been repeatedly passed upon by this court, as is conceded by plaintiff in error, and the objection made to it is that it told the jury that they should give the probable earnings of the deceased during what would have probably been his lifetime but for the accident, and states as the rule that they should find, as the capital to be invested, all that a man would probably earn in a lifetime, without deducting for his expenditures and with only guess work as to his health. The instruction is practically the same as an instruction approved by this court in B. & O. R. R. Co. v. Weightman’s admr., 29 Gratt. 431, 26 Am. Rep. 384; and again sanctioned in B. & O. R. R. Co. v. Noel, 32 Gratt. 394, and Poi’tsmouth St. R. Co. v. Peed, 102 Va. 662, 47 S. E. 850; and in addition to this sanction of the instruction we do not feel warranted in holding that it was not a proper instruction when it is not claimed in this case-that the verdict found by the jury is excessive.
This brings us to a consideration of the instructions of plaintiff in error refused by the trial court, or modified and given as modified.
Instruction ISTo. 1 involves a construction of Section 162 of' the Constitution of Virginia and the Act of Assembly approved March 27, 1902, (Acts 1901-02, p. 335, Code, [1904] sec. 1294 K.), which provide that “knowledge by any railroad employee injured of the defective or unsafe character or condition
This provision of the Constitution was taken verbatim from the Constitution of the State of Mississippi, and when adopted by our late Constitutional Convention it had been construed by the Supreme Court of Mississippi in the case of Buckner v. R. & D. R. R. Co., 72 Miss. 873, 18 South. 449, in which case a servant was injured by defective machinery and his contributory negligence. It was in that case claimed that the Constitution of Mississippi abrogated the defense of contributory negligence, but the court held otherwise, and after quoting the constitutional provision said: “The effect of this is not to destroy the defense of contributory negligence by a railroad company, but merely to abrogate the previously existing rule that knowledge by an employee of the defective or unsafe character or condition of the machinery, ways or appliances, shall not, of itself, bar a recovery. The law was that knowledge by an employee of defective appliances •which he voluntarily used, precluded his recovery for an injury thus received. The Constitution destroys that rule, and the mere fact that the employee knew of the defect, is not a bar to recovery; but knowledge by an employee of defects is still an element or factor, and a very important one, in determining whether, with the knowledge' he had, he used that degree of caution required in his situation with reference to the appliances causing his injury. The Constitution did not have the effect to free employees of railroad companies from the exercise óf ordinary caution and prudence. It does not
Under the rule laid down by this court in N. & W. Ry. Co. v. Old Dominion Baggage Co., 99 Va. 111, 37 S. E. 784, 50 L. R. A. 722, the construction placed on that clause in our Constitution by the Mississippi court must be adopted hy this court.
Practically the same words occur in the Constitution of South Carolina, which were construed by the Supreme Court of that State in Bodie v. C. & W. C. Ry. Co., 39 S. E. 715, and Carson v. Southern Ry. Co., 46 S. E. 525. In the first named of these cases, the court expressly recognized that contributory negligence was a good defense notwithstanding tlie constitutional provision; and as to the second case it is sufficient to say that it can have no bearing here, as it was not rendered until after the adoption of our present Constitution.
We are of opinion that independently of the rule laid down in N. & W. Ry. Co. v. Old Dom. Baggage Co., supra, the construction put upon the language of the constitutional provision under consideration, by the Supreme Court of Mississippi is a correct construction.
But we are further of opinion that the instruction fSTo. 1, asked for by plaintiff in error, was properly refused. In addition to the fact that there were other instructions given which clearly stated to the jury that the plaintiff in error had the right to rely upon the defense of contributory negligence, instruction Uo. 1, refused, was too broad and was therefore calculated to confuse and mislead the jury. •
While the' right to make the defense of contributory negligence is not abrogated by the constitutional provision and the statute under consideration, the defense cannot rest alone upon the knowledge of an injured employee of the defective or unsafe
Plaintiff in error’s instruction No. 2, refused, was as follows:
“The defendant company was not bound to move the structures on the side of its track merely because it widened its engines or tenders so long as there was space for them to pass in safety, and reasonable means existed or were provided for its employees to pass such structures in safety while performing their duties, although it may have been more inconvenient for them to use such means as they did use before the widening of the engines or tenders.”
The fatal objection to this instruction is that, in directing the jury to consider whether the plaintiff in error had provided other safe places where Oheatwood might have in safety ridden upon the engine on the occasion of the accident to him, it ignored all consideration of the question, whether such other safe places were known to Oheatwood. Oheatwood could not be held guilty of knowingly riding in an unsafe place instead of in a safe place provided for him by his employer, unless conscious at the time of the danger of the position he was taking, and of the safe position provided for him, and where that is the situation the rule of law laid down in 2 Thomp. on Neg. 1059; C. & O. Ry. Co. v. Sparrow, 98 Va. 644, 37 S. E. 202; Street's admr. v. N. & W. Ry. Co., 101 Va. 746, 45 S. E. 284, that where there are
Plaintiff in error’s instructions Eos. 3 and 4, as presented, told the jury that the fact (if it was proved) that Cheatwood had ridden safely on the steps of tenders through a space so narrow they could barely pass through, and of which he had been warned because of the danger, did not justify him in assuming that he could do so on another tender which was larger and of different construction; but they fail to preserve for the consideration of the jury the question, whether or not Cheat-wood knew that the tender in question was larger and different, or could by ordinary care have known it. This fatal defect in the instructions was obviated by the amendments thereto made by the court, which were entirely proper.
These instructions Eos. 3 and 4, as amended by the court (the amendments appearing in italics), are as follows:
No. S.
“The jury are instructed if they believe from the evidence that William Cheatwood had ridden safely by the sand-house while standing on the steps of the tenders of smaller size and different construction from the one on which he was riding when injured, and believe that on the smaller tenders there was barely sufficient room for him to pass, by being careful to stand close to the side of the tender, and that he had been warned that it was dangerous for him to do so, the fact that he had so ridden did not justify or excuse him for undertaking to ride by the sand-house on the step of a larger tender of different construction, if he knew that it was larger, and if they believe that he attempted to do so and was killed in such attempt they must find for the defendant.”
“A person who has been accustomed to ride through a narrow place when there is just enough room for him to get through on tenders or engines which he was accustomed to, cannot attempt to ride through the same space upon a new and different engine or tender of different construction, on the supposition that it is no wider than those he has been using and throw the loss on his employer in case he is injured by reason of its being wider, unless he Tcnew it was wider and different, or by reasonable and ordinary care might have icnown of it, and if the jury believe that William Cheatwood made sucli attempt and was killed while doing so, they must find for the defendant, and this rule is not changed although they may believe that he did so because he w^s not thinking what he was doing.”
The court also very properly amended plaintiff in error’s instruction No. 5, in the same respect, and this instruction, as amended, is as follows:
“If the jury believe from the evidence that there were places on the engine or tender provided for that purpose, icnown to him, where William Cheatwood could have stood and performed his duties in safety, and believe that he had been warned against riding on the tender next to the sand-house, because it was dangerous to do so, and that he was killed while attempting to ride by the sand-house on a tender, they must find for the defendant, although the position taken by him was the most convenient one.”
The instructions given by the court, ex mero motu, are as follows:
Court’s Instruction No. 1.
“The court instructs the jury that knowledge by any railroad
Oourt’s Instruction No. 2.
“The court instructs the jury that these instructions are to be read together, and construed in the light of each other.”
The instructions in the case have been set out above, and the court is of opinion that they fully and fairly presented the legal propositions contended for by the counsel on each side.
This brings us to the consideration of the remaining assignment of error, which is the refusal of the court to set aside the verdict and award a new trial, on the ground that it was contrary to the law and the evidence.
The defendant in error rested her claim for a recovery of damages- upon the grounds, (1) That Oheatwood was without fault; (2) that he was at his post of duty, in the only position he could assume to properly and expeditiously perform his duties; (3) that the master knew the place he occupied; (4) that he had safely occupied it for twelve years; (5) that the position on the step of a tender was absolutely safe until the 6,000 gallon ten
On the other hand, it was contended by plaintiff in error, (1) That there was no defect or unsafe condition in its tender, sand-house or track, that each and all, severally and collectively, were reasonably safe for the performance of all requirements of Oheatwood, if he had made a reasonably and ordinarily careful use of them; (2) that neither 'his instructions nor duty required him to ride on the step where he was killed, as the selection of the step as his riding place was his own choice; (3) that he had been warned not to occupy that position because it was dangerous ; that the warning showed that it was unnecessary to be on the step at that place, and that independently of the warning his observation must have shown him the danger; and (4) that with knowledge of the danger in riding on tenders he was accustomed to, he increased the risk by riding a tender of different construction, without attempt to ascertain whether or not it increased the danger, and was killed because the danger of doing so was materially increased.
With the very full statement of the case made at the outset of this opinion, it is unnecessary to go very fully into a review •of the evidence. It unmistakably appears, and by this the negligence of the plaintiff in error is fully established, that the company had no rule specifying where the assistant “hostler*” should ride on its engines when performing the duties performed by •Oheatwood on the occasion of his injuries; that'it was known to plaintiff in error that Oheatwood and others doing a like service were riding on the engines in use on its yard at Radford in the manner and at the places stated above; that in riding xxpon the engines in use prior to the day of this accident there was ba.rely room for the assistant “hostler” to ride upon the step of a tender in safety by the sand-house situated near the track; that with full knowledge of these facts a 6,000 gallon tender was
According to these and other witnesses, to sum up, the following facts appear: (1) That the position occupied by the deceased, Cheatwood, was the necessary, usual and proper position occupied by the assistant “hostler”; (2) that he could in that position best perform the duties required of him by the master; (3) that employees always rode in that position, unless it was storming; (4) that he could not properly attend to his duties in any other position which was as safe as that one; (5) that the position occupied by him was well known to the master; (6) that he had safely ridden in that position for from twelve to twenty years on all tenders known or handled by him prior to the 10th of July, 1903, when he received his fatal injuries; (7) that it was the first time an engine with a tender of that size
The situation then was this: The plaintiff in error had no rules prescribing where its servants should ride on its engines and tenders, when performing the duties of an assistant “hostler” on the yard at Eadford. It knew that its servants, performing these duties, had for years been in the habit of riding upon the engines and tenders run over the yard in the manner and places heretofore stated. It knew that it was impossible for an assistant “hostler” to ride upon'the step of a six thousand gallon tender, running backwards, over the yard by the sand-house situated near the track over which the engine and tender must necessarily pass, without certain injury or death to the assistant
“No servant is presumptively chargeable with notice of a peculiar and unusual state of things. Reasonable time .must be allowed to a new servant to become acquainted with his surroundings, and to an old servant to leayn of changes in the situation. Servants are presumed to be aware of defects which are perfectly obvious to their sight, and the danger of which is obvious to any person of their mental capacity. But to charge them with notice on this ground, the defect and danger must be unquestionably plain and clear, so that, if they did not see it, they must necessarily have been in fault.” 1 Shearman & Red. on Neg., sec. 216.
Upon the whole case, we are of opinion that the judgment of the Corporation Oourt of Badford should be affirmed.
Affirmed.