90 Va. 304 | Va. | 1893
delivered the opinion of the court.
It appears from the record, that on the 12th of December, 1889, the plaintiff' below — defendant in error here — a freight conductor in the' employment of the defendant company, was conducting a freight train from Charlottesville to Alexandria. At Culpeper, an intermediate station, he received a telegraphic order to shift certain stock cars then in and upon a side-track of the defendant’s road, north of its station at Culpeper to another side-track of the defendant south of its station at Cul-peper, and also to take into his train a certain car loaded with spokes, which was in and upon the side-track north of Cul-peper. The conductor, Dudley, who received this order, directed his men — including abrakeman named Munday — to go and shift the cars; and he addressed himself to the undertaking of the removal of a car which obstructed the street in the town of Culpeper. The men whom he had ordered and sent to shift the ears attempted to effect the shifting by dropping them down the track without the grasp or control of an engine; and his attention was called to the fact that two of the ears so dropped down the track were running down the grade without any one upon them — running “ wild,” in railroad parlance. The conductor, Dudley, pursued, overtook and stopped these cars, and was in between them, endeavoring to get a
Dudley was an old conductor with twenty years’ experience in railroad service. He was engaged at the time of his injury in his regular and appointed work, which he was paid to perform. By the rules of the company, which were placed in his hands in the form of a regular book, and by special orders constantly repeated, he was instructed, generally and particularly, as to his duties. He represented the company, commanded the crew and the train, and was responsible for the protection of the company’s property. By the rules of the company, as well as exnecessitate, a train, once lauuohed upon its career, must be under the absolute control of one person, whom all connected with the conduct of the train are in duty bound to obey. The law requires and approves this order and discipline. See R. & A. R. R. v. Moon, 78 Va. (Hansbrough), 745-750; R. & A. R. R. v. Johnson, 84 Va. (Hansbrough), 713; Railroad v. Williams, 86 Va. (Hansbrough), 176; Railroad v. Ayers, 84 Va. (Hansbrough), 679; Railroad v. Rudd, 86 Va. (Hansbrough), 648.
■ Proper rules must be made, and the conductor must obey and enforce them. Donnelly v. N. & W. R. R., 84 Va. (Hansbrough), 858.
Dudley was injured sixty miles from a terminal point, while
It is claimed that the brake upon the car loaded with spokes was defective, and that this caused the injury. But the answer to this is, that the rules of the company made it the express duty of the conductor to see to the careful inspection of all cars which he should put into his train in the transit, and that this duty he did not perform. It was put into his train without inspection, report or information of any defect whatever; it was carried to Manassas and thence to its destination. It was a Pennsylvania car, which had brought freight to, and carried freight from Culpeper without any discovered or known defect. The railroad companies in handling the vast mass of commerce which burdens their roads, have a right to presume that cars delivered to them by connecting lines of great railways are in proper condition. McKinney on Fellow Servants,
It is not required that railroad companies shall have inspection shops and special inspectors all along the line of their •roads. It is apparent that they are largely dependent upon their conductors, into whose hands their trains are committed, whose duty it is to inspect any cars which they pick up and incorporate into their trains in the transit. This it does appear was not done by Dudley or his subordinates en route. But Dudley himself not only did not know anything about the defective brake, but be is quite clear and certain, that in spite of the numerous warnings that he had given to Munday “ about this thing before,” but which he had practically concealed from his employees, Munday caused the accident and not a defective brake. Munday himself, who used the brake, knew nothing of any defect, nor did Deland, the engineer. Thornbury, an exceedingly swift and self-contradicted witness, testified that he shouted to Munday “ not to start that car, it has no brake on it.” In the next sentence he says, “ Munday let off the brake,” which he had just sworn was not there; and after the car had got far down the hill and was running rapidly he says he called to Munday, “ not to let it get the start of him, the brake is not in order.” When examiued as to how he knew about the brake, he said he examined it after the accident, and “ had no opportunity to examine it before.” And when confronted with his testimony on a former trial, as to the brake, he admits that “he does not know what was the matter with it.”
But, even if it were conclusively proved that the brake was defective, the conductor, who ivas injured by its being set in motion by his own negligence and disobedience of the rules of the company, cannot recover. The promoting and the dominating cause of the injury in the case, which controlled every subsequent event, was the turning of the cars loose upon the track and ordering the shifting tó be done without an
The foregoing review of the evidence, bringing us to the conclusion that the appellee, Dudley, was the victim of his own gross negligence and disobedience of the rules of the company, and cannot recover damages for his own wrong, renders it wholly unnecessary to advert to the errors assigned as to the instructions given and refused by the court. We are of opinion that the verdict of the jury and the judgment of the circuit court of Culpeper are wholly erroneous; and our judgment is to reverse and annul them.
JUDGMENT REVERSED.