110 Va. 117 | Va. | 1909
delivered the opinion of the court.
This action was brought to recover damages for personal injuries alleged by the plaintiff to have been sustained by him as a
In the view we take of .the ease it is only necessary to consider the last assignment of error which calls in question the action of the circuit court in refusing to set aside the verdict of the jury as contrary to the law and the evidence.
The record shows that two crews of section hands, near Maxwell station on the defendant’s road, loaded a flat car, which formed part of a “work train,” with worn rails which had previously been taken up from the track. The rails w.ere 28 feet long, each weighing about 625 pounds. The last rail thrown upon the car was somewhat curved, so that it did not lie straight but slightly across the car. The plaintiff was a section hand working with one of the crews mentioned, and took an active part in the work of loading the rails on the car. When the car was loaded, the men of the two crews, including the foreman of each, boarded the train as it started, the conductor intending to stop further west to load some additional rails. The plaintiff says that he boarded the second car from the one he had helped to load, leaving a flat between him and the loaded car. He further says that he first sat for a while on the edge of the car, but that at the time of the accident he had gotten up and was standing on the same car, with his back toward the flat that had the rails on it, with his hat pulled down over his eyes to protect him from the cinders. When the train had proceeded about one quarter of a mile, at the usual rate of speed, at the entrance of a cut on a curve, the bent rail was thrown off the car by its motion in going around the curve, striking the bank of the cut and sweeping back over the train of cars, striking the plaintiff and knocking him under the cars, thus causing the injury complained of.
These are the salient facts upon which the defendant company is charged with negligence in causing the injury for which compensation is sought in damages.
Every party to an action at law has a right to insist upon a verdict or finding based upon the law and the evidence in the case, and not, in the absence of evidence, upon mere inference, and conjecture. Southern Ry. Co. v. Hall, 102 Va. 135, 45 S. E. 867.
Negligence must be established by affirmative evidence, which must show more than a mere probability of a negligent act. The existence of negligence must not be left wholly to conjecture, and, in determining whether or not an act or omission of the master ivas negligent, it must be borne in mind that the master is not compelled to foresee and provide against that which reasonable and prudent men would not expect to happend. N. & W. Ry. Co. v. McDonald, 106 Va. 207, 55 S. E. 554.
In the case at bar, the grounds of the defendant’s negligence are alleged to be that the conductor of the train failed to see that the rails were so loaded on the car that they would not fall off or get displaced by the motion of the car; that he failed to provide suitable and sufficient standards to hold the rails on the car; that no precautionary measures were taken to secure the bent rail, which would not lie flat or parallel with the other rails and was, therefore, more easily displaced by the motion of the car; that the train ivas started so quickly after the loading that the men did not have time to secure the safety of the load; that the bent rail should have been straightened before it was put on the car; that no instruction or warning was given the plaintiff as to the dangers to be apprehended from doing the Avork,- and that it was negligence, to permit a boy of the plaintiff’s age and experience to take part in such work.
There is no evidence tending to show that it was negligence for the defendant to employ the plaintiff, who was an efficient, intelligent young man, eighteen years of age.
We are of opinion that under the evidence adduced, the plaintiff was not entitled to recover. The evidence must be such as to satisfy reasonable and well balanced minds that the injury resulted from the negligence of the defendant. Consumers Brewing Co. v. Doyle, 102 Va. 399, 46 S. E. 390.
As said by this court in N. & W. Ry. Co. v. Cromer, 101 Va. 671, 44 S. E. 899: “The existence of negligence must
The evidence in the case at bar shows that the plaintiff’s injuries resulted from a pure accident that was not to be anticipated or provided against by reasonably prudent men, and for which the defendant company cannot be held liable.
The judgment complained of must be reversed, the verdict set aside, and a new trial granted, if the plaintiff be so advised, to be had not in conflict with the views expressed in this opinion.
Reversed.