Norfolk & W. Ry. Co. v. Beckett

Decision Date27 July 1908
Docket Number795.
Citation163 F. 479
PartiesNORFOLK & W. RY. CO. v. BECKETT.
CourtU.S. Court of Appeals — Fourth Circuit

A. W Reynolds (Joseph I. Doran and Theodore W. Reath, on the briefs), for plaintiff in error.

Harold A. Ritz and Joseph M. Sanders (Sanders & Crockett, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and WADDILL and BOYD, District judges.

PRITCHARD Circuit Judge.

This is an action brought for the recovery of damages on account of personal injuries sustained by the plaintiff below, James H Beckett, resulting in the loss of a leg while employed by the defendant below, the Norfolk & Western Railway Company, as a freight conductor. The case was tried at October term, 1907 of the Circuit Court of the United States for the Southern District of West Virginia, at Bluefield, and a verdict was rendered in favor of the plaintiff below for the sum of $10,000. The defendant in error had been running over that part of the road where he was injured but a short time. The facts, substantially, are:

'On the 14th day of November, 1902, he (Beckett) was called to go to Bluefield, and was started out with a train of about 45 cars, 5 of which he set off and left at Vivian. When he reached Vivian, he received an order to run an hour late, on account of having been detained in setting off the cars there. Running on the order which he had received, he reached Morgan, a short distance east of Vivian, and, when the train stopped for the engine to take water, he went into the office at Morgan to send a message to the superintendent, informing him as to the cause of the delay, and while he was laying out, and also to send a message to Coaldale, concerning a car which he was to get on his way to Bluefield, all of which he was required by the company to do, and which it was his duty to do. He gave the messages to the operators, and the train started while he was at the office, and he came out and caught the train and was climbing up on the side of a box car, on a ladder, placed on the side of the car for the purpose of getting upon the car, and while so climbing up the car, and when he had gotten nearly to the top of the car, a portion of his body projecting above the top, he was struck by a water column or standpipe, standing by the side of the track about 30 or 40 yards east of the station, and was knocked between the cars, fell to the ground, and the cars ran over him and cut off his left leg, between the ankle and the knee; thence he was taken to the hospital at Bluefield and his leg was reamputated.' The first question to be determined is:
'Was it negligence of the master to erect and maintain the water column or standpipe which struck the defendant in error at the point at which it is erected and maintained?'

It is a well-settled principle of law that it is the duty of the master to furnish the servant with a reasonably safe place in which to work, and the servant may assume when he enters upon his employment that the master has performed the duty thus enjoined upon him.

It appears from the evidence that the standpipe which occasioned the injury in this instance was set so near the track that it was impossible for a person occupying the position that the plaintiff did on that occasion to pass it without injury. While the evidence shows that trains of which the defendant in error was in charge had frequently taken water at Morgan, it does not appear that the defendant in error had ever attempted to board a freight train at that point prior to the time of his injury, or that his attention had ever been called to the fact that the standpipe was too close to the track to permit one to pass safely on the side of the box car. However, it is insisted by the plaintiff in error:

'That there was no negligence in placing the standpipe in the position it occupied at the time the defendant in error was injured; that it was the duty of the defendant in error to have acquainted himself with the dangers incident to this standpipe; that under the circumstances proved in the case it was gross negligence on the part of the defendant in error to attempt to ascend the car upon a side ladder while the train was in motion and when he knew that he was approaching this standpipe; that the defendant in error had no right to assume that the standpipe was at a sufficient distance to permit him to pass in safety in the position which he occupied; that there was no necessity that he should have thus exposed himself to danger in the discharge of his duties; that he knew that the position he occupied was a dangerous one; that he was liable to come in contact with objects along the side of the road; and that he assumed all of the dangers incident to the dangerous manner in which he chose to get on board of his train.'

This contention might be true as to obstructions placed so near the track as to be dangerous without the knowledge or consent of the master and when he had had no opportunity to acquaint himself with the situation.

In the case of Choctaw, Oklahoma & Gulf Railroad Co. v. McDade, 191 U.S. 67, 24 Sup.Ct. 25 (48 L.Ed. 96), the court, in discussing this phase of the question, among other things, said:

'It is the duty of a railroad company to use due care to provide a reasonably safe place and safe appliances for the use of workmen in its employ.'

Ordinarily, the conductor of a freight train is provided with a caboose in which to ride whilst the train is in motion; but it should be borne in mind that the train on this occasion did not have a caboose, and that, among other duties, the conductor was at intervals required to perform those of a brakeman. Therefore, when we come to consider the question as to whether the conductor was in the discharge of his duties at the time he was injured, we are reminded that the top of the car was the only place provided by the master whereon he could ride, and, even had this not been the case, the fact alone that he was required to act as brakeman would necessitate his presence on the top of the car while the train was in motion.

On this occasion the train had stopped at Morgan in order to take on coal and water, and it appears that the defendant in error has gone to the dispatcher's office to report to the superintendent, thus performing a duty required of him by the rules of the company, and while in the performance of such duty the train started to leave the station, and the conductor immediately proceeded to board his train by climbing the side ladder, the only means provided by which he could reach the position he was required to occupy while the train was in motion. When the train started he was confronted with a situation which involved the performance of a plain duty. The duty thus imposed was imperative, and there was no alternative. To say that it was not his duty to accompany the train which had been placed under his control by the master would be unjust, and under these circumstances it cannot be insisted that the defendant was acting contrary to the orders of the company or doing anything inconsistent with the faithful performance of his duty. If the conductor had on this occasion refused to board his train as it pulled out, and thus permitted the same to proceed on its way, it would have been tantamount to an abandonment of the trust reposed in him as the captain of the train and a flat refusal to perform his duty as required in...

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