81 Va. 188 | Va. | 1885
delivered the opinion of the court.
The declaration contains but one count, the gravamen of which is, that the deceased, a firemen in the employment of the defendant company, lost his life while in the discharge of his duty as such fireman, by reason of the defendant’s negligent and careless construction, at a point in the line of its road, of a bridge, the upright sides of which were not, sufficiently distant from the engines and cars when passing over same to
After the general averment of defendant’s failure and negligence in not erecting, as was its duty, safe structures and bridges in the' respects above stated, the declaration proceeds: “And by reason of the carelessness and negligence of said defendant in not properly constructing said bridges and the upright sides thereto as aforesaid, the plaintiff avers that his intestate, while in the due and faithful discharge of his duty to said defendant as fireman, as aforesaid, upon one of the engines of said defendant, drawing a train of freight cars, and while exercising due care and caution, was violently hurled and thrown against a certain bridge, and the upright sides thereof, to-wit: on the 27th day of November, 1883, at the county of Bath aforesaid, at a point upon defendant’s railway, between Copeland’s and Crane’s stations, on the line of said railway, and was knocked down and killed by means thereof. An d the plaintiff avers that his intestate did not know, and had no means of knowing, while in the proper and faithful discharge of his said duties as fireman, as aforesaid, of the defects and dangers of the said bridge, and its upright sides thereto, and of the danger, the proximity, and closeness of said bridge, and upright sides thereto, to the said engines and cars of defendant while passing over and along the same, though the same was well known, and had been well known, to the said defendant for a long time,” &c. And the declaration concludes with the averment that, but for the gross negligence of the defendant in the premises, and its failure to notify and warn the plaintiff’s intestate of said dangers, the decedent would not have been injured, wounded and killed, whereby, &c. Such is the body and essence of the negligence charged against the defendant.
The defendant demurred to the plaintiff’s declaration, and
At the trial in the court below, when all the evidence on both sides had been heard by the jury, the defendant demurred to the plaintiff’s evidence, and the plaintiff joined therein. The jury found a verdict in favor of the plaintiff, and assessed the damages at $2,500, subject to the opinion and judgment of the court on the demurrer to evidence. On consideration, the court gave judgment for the defendant on the demurrer; and on the application of the plaintiff a writ of error to said judgment was awarded by one of the judges of this court.
The unfortunate occurrence, which resulted in the death of the defendant, Thomas A. Sheeler, happened on the night of the 27th day of November, 1883, at a point on the defendant’s line of railway, between Copeland’s and Crane’s stations. The deceased (Sheeler) had been in the employment of the defendant for over three years—first as brakeman, and then, for the last eight months of that period, next preceding and at the time of his death, as 'fireman. Prior to the occurrence which resulted in his death, Sheeler had been regarded as a good and reliable railroad man, and had been recommended for, and been promised, promotion to the position of engineer.
It does not distinctly appear in evidence whether the train, on the engine of which Sheeler was fireman, was a passenger or a freight train; but, from what is disclosed, the fair, if not necessary, inference is that it was the latter. On that' train E. J. Sweetwood was the engineer, having charge of the engine which drew the train, Sheeler, the fireman on said engine, and W. C. Miller, front brakeman; the latter being the only person who saw and knew exactly how Sheeler met his death, and the circumstances leading thereto. On the night in question this train left Clifton Forge—one witness says, about 12 o’clock, and another says about 11 o’clock arid fifty minutes, under a special
Sheeler got in the position in which he was killed in about three hundred yards of the bridge. Miller, who was looking at him, and not thinking they were so near the bridge, happened to look forward, and, by the aid of the head-light, saw the bridge, but just had time to turn when he saw Sheeler fall,
From the statement of Sweetwood, the engineer, under whom Sheeler was fireman, it appears that he knew nothing of how the accident occurred, as, from his position as engineer, he could not see Sheeler in the position in which he was when struck; that a man standing on the engine steps could not, in his opinion, safely pass the bridge, though he never saw a man try it, and would not try it himself; that the top of the bridge side is about eighteen inches higher than the floor of the cab, and that he supposed the distance or space between side of passing engine and side of bridge to be about nine or ten inches, but that he never examined the bridge; that he did not, and
The same witness testifies that the train was running up grade at the time of the accident; that on such grade the fireman’s duty is to stand down in the center of the front of the tender, and shovel coal into the furnace at short intervals, in which position he is kept pretty busy; but on a level or down grade the fireman may get up in the cab and sit on the fireman’s box, and look out for the next up grade; that a fireman may shake the bars of his grate when he pleases, but must keep the ash-pan closed when the engine is in motion, and that he (Sheeler) knew this, because he (Sweetwood) had told him when he commenced as fireman; and that the ash-pan would not have been open if Sheeler had discharged his duty, and that the ash-pan could not have been open without Sheeler knowing it, as the handle to it is a heavy iron bar which lifts up from the floor and stands in the face of the fireman when the pan is open, but when the pan is shut the handle is down to the floor. Sweetwood, the engineer, also explains the difference between the ash-pan damper and the ash-pan slides, and shows that the former, in one class of engines, is at the
Omitting more minor details of statement, such are the facts of the case brought out by the witness introduced by the plaintiff, except certain printed rules of the company referred to in the testimony, which will be noticed further on.
The defendant introduced only one witness, E. L. Crenshaw, civil engineer by profession, and for six years, next preceding the death of Sheeler,had been in the employment of the defendantas assistant division engineer between Richmond and Huntington, the bridge in question being in his charge. This witness, speaking from actual knowledge, describes the bridge; and his statement is uncontradicted by anything in the evidence for the plaintiff, or any inference that can be fairly drawn therefrom. The substance of his statement is: That the bridge is a half through bridge, with sides just fire feet high—that is, to
Looking to the pleadings, the facts, and the principles of law applicable to the case, we fail to perceive any ground upon which the plaintiff below, the plaintiff in error here, could be entitled to prevail.
As we have seen, the plaintiff’s claim to damages is predicated solely of the alleged negligence of the defendent in error in carelessly and negligently constructing a certain bridge, and the upright sides thereof, in the line of its road, so close to the track that the plaintiff’s intestate, a fireman in the employment of said company, while in the due discharge of his duty and while exercising due care and caution as such fireman, was hurled and thrown against the side of said bridge, and was killed by means thereof.
Tested by the principles comprehensively and justly stated by the author quoted above, how can it be said that the railroad company, in this case, was derelict or negligent in the performance of any duty imposed upon it by law? Aside from the averments in the declaration, the record does not disclose a single circumstance or fact from which to draw the
So far from there being any evidence that the bridge was defective in its mode of construction, the direct, positive, and nncontradicted testimony of the assistant division engineer, E. L. Crenshaw, is that the bridge is of the same width of all other bridges of a similar character along that line of railway, and is wider than some similar structures, and equal in width with others on other railroads, in this State, mentioned by him. And his direct and positive statement is, “ That the bridge is properly built.” This evidence is not in conflict with any evidence offered by the plaintiff, nor with any inference to be fairly drawn therefrom, and is, therefore, entitled to its full weight, even under the rule governing demurrers to evidence.
In view of the facts, as disclosed by the record, it is not possible, consistently with the very truth of the case, to arrive at the conclusion that the defendant in error is legally liable to answer in damages for the death of Thomas A. Sheeler, or that the defendant company did not, to the fullest extent, exercise the requisite care and foresight demanded by the legal implication that it would keep a safe track, and adopt suitable instruments and means with which to carry on its operations with safety to all who might lawfully be on its road, in the.
In N. & W. R. R. Co. v. Ferguson, 79 Va. 248, Fauntleroy, J., says: “A carrier is not liable for injuries resulting from accident against which the highest degree of skill, foresight, and diligence would have been unavailing. The presumption of negligence, however, does not attach itself to every injury which may overtake a passenger while being transported in a car; it belongs only to that class of accidents which are caused by a defect in the road, cars, or machinery, or by want of diligence or care in those employed, or by some other thing which the company can and ought to control as a part of its duty to carry the passenger safely, because in all these matters it is the duty of the company to use the highest degree of care to have all their arrangements safe and in good condition.” See also 20 American Railway Decisions, 245-7 and 261; Meier v. Penn. R. R. Co., 64 Penn. St. 226, and other authorities cited by Fauntleroy, J.
The settled doctrine is, that “ in order to maintain an action against a railroad company for injuries received, &c., it must be proved that the injury was caused by the negligence of the defendant, or his agents, and it must not appear from the evi
The case presented by the evidence is not only one in which the deceased did not observe the requisite care and caution, but is one in which he so recklessly exposed himself, in a position of extreme peril, as to make it absolutely certain that his own rash and thoughtless act was the sole proximate cause of his death. He was in a position where his duty did not call him, and into which he had not been ordered by anyone in authority. He was on the outside of the engine and tender, with his feet resting, one on the step of the engine, the other on the step of the tender; clasping with his right hand the hand-holder on the engine, and in his left hand the small hose, and, with his body swung out and stooping forward, with his left arm reaching round under the side of the engine, was engaged in the futile attempt to put out some burning waste on the box of the rear driving wheel of the engine, by squirting water from the hose through the spokes of the rapidly revolving wheel; the train at the time running at the rate of eighteen or twenty miles
Thus Sheeler had the most ample opportunity of knowing, and, the necessary inference is, that he knew all about the danger to which he voluntarily exposed himself, and which resulted so fatally to him. The evidence shows that his place, when the train was in motion, was inside the engine and tender; that no duty, under such circumstances, called him on the outside, but that he went on the outside, where, to a rational being, in
All the authorities were carefully reviewed by Lacy, J., who delivered the opinion in that case. In the course of his opinion that judge, quoting with approbation from the opinion of the court in Owen v. The N. Y. Central Railroad Company, said: “ In view of the brakeman’s knowledge as to the bridge, his omission to avoid the accident by stooping was such want of ordinary care and caution as would defeat his action if otherwise maintainable. Having assumed the risk of injury to his person from the bridge, evidence offered by him upon the trial tending to show its dangerous character was properly excluded. The danger was open and obvious, and within the plaintiff’s personal knowledge at the time he entered the defendant’s employment. It was a danger clearly incident to the service which he undertook to perform. He knew as well as his
Such being the doctrines applied to the case of a brakeman, whose duty required him to be on top of a freight train and frequently to pass, in an erect position, from one freight car to another, on a line of road where many overhead bridges were constructed too low to permit a man to pass safely under such structures without stooping or sitting down, and the brakeman, though the bridges had been pointed out to him, and he warned of the danger, had only passed the bridge three times, in day light, and was killed by coming in collision therewith on his fourth trip, at night, and where his contributory negligence consisted only in omitting to stoop or sit down, surely there can be no necessity for argument to show that there is no just ground to hold the railroad company liable in this case, when it clearly appears that the deceased, when killed, was voluntarily in a position where his duty did not call him when the train was in motion—the extreme peril of which position he was bound to know, as a rational being, with long experience and actual knowledge of the situation, and when, but for his own reckless act, he w'ould not have been killed. There is, therefore, no just reason for saying that Sheeler met his death by reason of the company’s negligent and defective mode of constructing the bridge. But it is insisted that, in violation of the rules of the company, the train was running at an excessive rate of speed; that such running was the negligence and careless act of Sweetwood, the engineer, who occupied to the deceased fireman the relation of vice-principal, and that the company is liable by reason of this act of negligence.
In the view taken of this case, it is wholly unnecessary to
The plaintiff in error relies upon certain printed rules of the company, found in the company’s “Time Table No. 12,” and especially upon Rule No. 106. These rules are so indefinitely referred to in the evidence as to make it uncertain to what extent and for what precise purpose they went in ‘ evidence to the jury. But, it seems, there was no objection in the court below to this evidence, and the fair presumption is, the gravamen of the charge being negligence, that the evidence was admitted as tending to prove the substance of the issue. But, however this may have been, it will be found on examination that these printed rules of the company, so far from fixing negligence upon the company, or its agents, actually exonerate it from the charge of negligence.
Conceding the train in question to have been a freight train— that Rule 106, relied on by the plaintiff in error, applied to the bridge in question, and seeing that 'that rule requires a freight train, when passing such structure, to reduce its speed to eight miles an hour, and it being proved that the train in passing this bridge, at the time of the accident, was running at the rate of eighteen or twenty miles—how can it be said, under the circumstances, that such rate of speed was negligence on the part of the engineer for which the company is liable? The printed rules are classified as train rules, general rules and rules for moving trains by telegraph. These printed rules are one hundred and seventy-two in number, and they constitute a very high testimonial to the wise foresight, prudence and caution of the company’s management. The evidence shows that all the rules of the company are not printed, and in the nature of things they could not be, as unforeseen emergencies must frequently arise requiring special orders, as the occasion may
On the occasion in question the train was running under a special “ time order.” A time order is an order permitting a train to run against or opposing a superior train ; and a train so running, as shown by Rule 171, must clear the main track ten minutes before the time expires. Rule 172 requires conductors to show their orders to their rear brakemen, and engineers to show theirs to their firemen, so that all may fully understand their requirements. And Rule 165 requires both conductor and engineer to have a copy of such order, and to so handle their trains as to avoid the possibility of accident. In this instance, the train was running from Clifton Forge to Mason’s tunnel under a “ time order.” The distance was over fifteen miles, which distance was required to be made in about fifty minutes, and the train to get out of the way ten minutes before the arrival of the express train at the latter place. Miller, the front brakeman, knew of the “time order,” and the presumption is that the conductor had given a copy of the order to the engineer, and that the latter had shown it to the fireman, Sheeler, as required by Rule 172. This being so, the insistance of counsel for the plaintiff in error, that if the speed of the train had been reduced to eight miles an hour on approaching the bridge, that would have notified Sheeler to
As the train was running, not by ordinary or schedule regulations, but in obedience to a special order, to which Rule 106 could not apply, that rule, for the time being, was necessarily superseded by the special “time order.” The speed of the train was necessary to prevent a collision. So important was this, that by reason of the short time lost in taking up Sheeler, the train had to hurry away and get on the siding at Crane’s, some three or four miles short of the point specified in the time order. Thus, an unforeseen emergency arose; the danger of collision was increased, and instead of rushing recklessly on to Mason’s tunnel, the train stopped at Crane’s. This was in strict compliance with Rule 118, which is in these words: “In all cases of doubt, take the safe course.” This brief but comprehensive rule but announces the fact, known to every person of observation and experience, that, in the conduct of the necessarily complex affairs, and especially in the management of the large number of trains constantly passing over a great line of railway, rules adopted to the ordinary state of things must, of necessity, be departed from, and life and property, in numerous instances, made to depend for the time upon the sagacity and fidelity of the agents and employees of com
Judgment aeeibmed.