96 Va. 430 | Va. | 1898
delivered the opinion of the court.
We shall only consider the third assignment of error, which involves an inquiry into the sufficiency of the evidence to sustain the verdict and the judgment.
Graham, at the time of the injury, was in the employment of the defendant as helper to the overhauler in the yards of the company at Roanoke. Upon the occasion of the injury of which he complains, Wilson, the foreman of the yard, directed Lowry, who is known as an “ ostler,” to go with the engine and move a car to a place upon one of the tracks within the yard at which a number of car-wheels which needed repairing had been deposited. There were detailed to aid him in this task Graham, the plaintiff, Gilmore, Robinson, and Yiar. They were directed to take with them a “ skid,” which is a frame-work made of strong and heavy timbers, one end of which rests upon the car which is to be loaded and the other upon the ground, thus forming an inclined plane up and along which heavy articles are drawn. The engine was attached to the car with its front or head-light toward it, and in this manner it was moved to the place where the wheels were to be loaded. The “ skid ” having been placed in position, chains were attached to the wheels at one end, and to the engine at the other. The method of loading was to back the engine, which had, of course, first been detached from’ the car, and thus draw the wheels up the inclined plane formed by the “ skid ” to the floor of the car. It was discovered that a brake-rod which projected above the end of the car next to the wheels which were to be moved was in the way of the
The employees of the company seem to have been skillful men, and competent to the proper discharge of the duties imposed upon them. Indeed, those duties, so far as this record
We have said that Graham knew these things, because a man is presumed to know what takes place in his presence and before his eyes, and in the light of day. He was in a position to see all and to hear all that occurred, and when he went under the car he must have known that he was going into a place of danger, and that no one had been charged with any particular duty to look out and warn him of approaching danger.
To go under a car, under such circumstances, to which an engine was attached, without notifying the engineman of his purpose, was an act of negligence. The facts in proof estab
As was said by Judge Buchanan, in Moore Lime Co. v. Richardson, 95 Va. 336: “ The work was neither complex nor difficult. It is not shown that there was auything in the nature of the work which made it necessary for the defendant to enact rules. Its failure to do so was not proof of negligence, unless it appeared from the nature of the work in which the servants were engaged (and it does not) that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity for such rules.”
Something is necessarily left to the care and discretion of the employees themselves.
Upon the whole case we are of opinion that the judgment upon the demurrer should have been for the defendant.
Reversed.