46 W. Va. 569 | W. Va. | 1899
Walter Seldomridge, twenty-seven years of age, had been for four year®, up to the 18th of October, 1895, a fireman on the Chesapeake & Ohio Railroad, and before that a section boss. He knew all about engines and railroad service, and, in fact, was a competent engineer. He had been recently crippled in the shoulder from a fall from his engine, and the company placed him to watch at night an engine, the only one operating on the few miles of the Gauley Branch, connecting with the Chesapeake & Ohio Railroad at-Gauley Junction; and also to watch freight cars standing at that junction, because of some depredations which, had been committed upon said cars. This engine lay overnight at Gauley Junction on said branch road. Twenty-two freight cars were pushed or placed on said branch railroad between three and four o’clock of the 18th of October. On that day Seldomridge landed at Gauley Junction to perform the service specified. He went with this engine from the Junction to Gauley Bridge, one and one-half miles distant. About six o’clock the engine was put in charge of Seldomridge by Sampson, its engineer, and Sel-
First, the point is made that we cannot consider the case, because the record does not show that the demurrer to evidence was filed, so as to make it part of the record. I should have said that the defendant demurred to the evidence, on which demurrer the court gave judgment for 0. ASeldomridge, administrator of Walter Seldomridge, for five thousand dollars, as fixed by the jury in its conditional verdict, and that the company had brought the case here. Does the record attest the demurrer to evidence? The record says that, “after all the evidence had been introduced before the jury, the defendant demurred to the plaintiff’s
Is the railroad company liable for this lamentable accident? I do not see that the question of fellow «servantry, though discussed in the case, arises, because no neglect is imputed to the train crew in backing the -pick-up train. If, however, that question were material, it would be against the plaintiff, because those train hands were fellow servants with Seldomridge. Jackson v. Railroad Co., 43 W. Va. 380, (27 S. E. 278,) and (31 S. E. 258;) Railroad Co. v. Houchins’ Adm'r (Va.) (28 S. E. 578.)
The turning point of the case lies in the question, is the railroad company liable for not having an ash pit, to be used in cleaning out the ash pan? Every man has a right to conduct his business in his own way. The G-auley Branch was only fourteen miles in length, and this one engine would make a trip from Gauley Junction to the other terminus and back each day. There was but one engine used, and it would hardly be expected that this little road would be furnished an ash pit for that one engine. “An employe cannot control the employer’s business, nor prescribe the methods of conducting it. The employer is not liable to the employe for personal injuries received by him, although the employer might have employed a safer method Of conducting Business. The employee assumes the risk ordinarily incidenutal to his employer’s business. * * * An illustration of the rule is supplied by a case to which it was held that the company was not liable to a switchman who was injured because it failed to- light the yard in which it required him to perform hi® duties.” 3 Elliott, R. R. section 1289. “Furthermore, the servant takes the risk of the mas-
But grant, for argument, that the company was remiss in not providing an ash pit; Seldomridge accepted the post, and went to work, knowing there was no ash pit. If dangerous to work without it, his long railroad experience told him of that danger, and he assumed the risk. “When a servant enters into the employment of a master, he assumes all the ordinary risks which are incident to the employment, whether the employment be dangerous or otherwise. If a servant wilfully encounters dangers, which are known to him or are notorious, the master is not responsible for an injury occasioned-thereby.” Berns v. Coal. Co., supra. Often
There is another ground forbidding recovery. Seldom-ridge saw those standing cars. He saw the pick-up train arrive, and was informed and knew that it would back in to take these cars. The train, having arrived, would reasonably occupy but a few minutes in getting off the main track and moving to the Gauley Branch. He could see it. He could hear it. He did see it, and hear it; yet he went under that engine with imminent danger staring him in the face. Why did he go under it, then? He had all night before him. He assumed the risk, with eyes open to the danger, because, as he says, he thought he could finish before the train got in. He knew there was danger, for he said, after the accident, that he thought he could finish before the danger point of time arrived. What prudent man would go under an engine within one hundred and twenty feet of freight cars, with a downgrade between them, knowing that an engine would bump against them in a few minutes? In Ward’s Adm’r v. Railway Co., 39 W. Va. 46, (19 S. E. 389,) this Court held that “an employe cannot recover from his employer for injuries received by reason of an accident which could have been averted by the employe’s proper discharge of the duties of his employment; nor can the personal representative of such employe, in such case, if death ensue, maintain an action for damages.” “A servant,, having knowledge of danger about him, must use diligence- and care in protecting himself from harm.” Stewart v. Railroad Co., 40 W. Va. 188, (20 S. E. 922.) So, contributory negligence of Seldomridge in going under that engine just at that dangerous time would also forbid recovery. He had danger-signal lamps. He put none upon his engine to-let the trainmen know he was there. I should have mentioned the case of Railroad v. Weese, 32 Fla., 212, (13 South, 436,) where the complaint was that no pit was prepared that plaintiff could stand in while wiping the engine,, and no signal lamps were furnished him to warn the other employes, and the court held that where the employer does
Complaint is made that there was no side track on which to place the engine. Seldomridge knew this. The principles as to the ash" pit apply to the side track. Mention is made of the absence of a signal light at the junction of the G-auley Branch with the Chesapeake & Ohio Road, but I do not ,see what this has to do with the engine. The plaintiff’s own evidence in this case shows that Seldomridge knew of, saw, realized, and intentionally encountered the danger, and, therefore, that alone would sustain the demurrer. Gerrity's Adm’r v. Haley, 29 W. Va. 98, (11 S. E. 901.) On the whole evidence, the case is to me plain, against the plaintiff. Feeling and sympathy for the unfortunate Walter Seldomridge and his mother might decide the case for the plaintiff, but law does not.
Though I should have done so earlier in this opinion, I will quote, as applicable to this case, from the opinion of Judge Green in the case just cited: “This case is, of course, entirely different from those cases where, in any work, dangerous appliances were used, which the employer knew were dangerous, but the servant did not, and from those where defective machinery was furnished by the employer, which he knew was defective, but the servant did not, as in Cooler v. Railroad Co., 24 W. Va. 37, and from those where a master had notice of defects and promised to remedy them. A very different case would be presented if the plaintiff’s intestate had been engaged in some work the dangers of which, the jury might infer, he was ignorant of, and the employer aware of. The law is thus stated in Berns v. Coal Co., 27 W. Va. 296,” — citing that case to show that if the employe “willingly or wilfully encounters dangers, known to himself, or notorious, the master is not liable.” For these reasns, we reverse the judgment, and enter judgment for the defendant.
Reversed.