Darracutts v. Chesapeake & 0. R. Co

Decision Date05 May 1887
Citation2 S.E. 511,83 Va. 288
CourtVirginia Supreme Court
PartiesDarracutts v. Chesapeake & 0. R. Co.
1. Assignment of Error—Demurrer to Declaration—Waiver.

By amending his declaration, and going to trial on the merits, plaintiff waives his right to assign for error that a demurrer to the declaration, as originally filed, was improperly sustained.

2. Master and Servant—Contributory Negligence—Railroad Companies.

Plaintiff, a brakeman, sought in his action against the railroad company by which he was employed to recover for an injury to his hand received whiletrying to couple two freight cars, one of which was stationary, and behind which plaintiff stood, while the other was moving towards plaintiff, who had ample opportunity to observe the fact that the coupling on the latter car was the "three-link coupling." There was evidence tending to show that plaintiff was warned of this, and to be particular, and not to go between the cars. Plaintiff, however, denied having received these warnings. A rule of the company, of which plaintiff had knowledge, forbade employes entering between cars, when in motion, to uncouple them, " and

[Va.

all such imprudences; " while another rule, designed to lessen the danger of coupling, required that, when possible, a stick should be used. Both these rules plaintiff disregarded. Held, that his contributory negligence precluded his recovery. 3. Same—Perils of Employment—"Three-Link Coupling."

In view of the frequency with which the " three-link coupling " is used on freight trains, a brakeman, whose duty it is to couple cars, must be presumed to have assumed the increased risk attendant upon the use of this coupling as one of the ordinary perils of his employment.

This was an action of trespass on the case in the circuit court of Hanover county. The action was brought to recover damages for injuries sustained by the plaintiff while engaged in coupling cars of the defendant company. The declaration alleges that the plaintiff, when the accident occurred, was in the employ of the company as a brakeman, and that the injuries complained of were caused by the defective fixtures for coupling on a certain car, which he was in the act of coupling to another. There was a demurrer to the declaration, which the circuit court sustained, with leave, however, to the plaintiff to amend. The declaration was accordingly amended by adding an averment that the plaintiff was "without knowledge of the defective condition of the said draw-heads, bumpers, and fixtures for coupling, acquired in time to avoid the said injury hereinafter complained of and sustained, " etc. The defendant thereupon pleaded the general issue, upon which plea issue was joined; and the jury, having heard the evidence, returned a verdict for the plaintiff for $4,500 damages. The court, however, upon the motion of the defendant, set aside the verdict, and granted a new trial; and at a subsequent term, neither party requiring a jury, judgment was given for the defendant, whereupon the plaintiff obtained a writ of error.

Sands, Leake & Carter, for plaintiff in error

William J. Robertson andH. T. Wickham, for defendant in error.

Lewis, P. The case presents no new question, and maybe briefly disposed of. The first assignment of error is that the circuit court erred in sustaining the demurrer to the declaration. A sufficient answer, however, to this objection is that by amending the declaration, and going to trial on the merits, the right to object to the ruling of the court on the demurrer was waived. This is a well-settled rule, in support of which counsel for the defendant in error refer to the pertinent language of Nelson, C. J., in Jones v. Thompson, 6 Hill, 621, who said: "By amending and pleading the general issue, the defendant admitted the correctness of the judgment on the demurrer. Had he intended to rely upon any error in that judgment, he should not have amended, but left the issue upon the record, and taken his appeal at once. Who ever heard of an issue at law upon the record in this court after the party demurring has availed himself of the privilege by joining an issue of fact?"

Upon a similar point in Clearwater v. Meredith, 1 Wall. 25, the supreme court of the United States said: "When the plaintiff replied de novo after a demurrer was sustained to his original replication, he waived any right he may have had to question the correctness of the decision of the court on the demurrer. In like manner he abandoned his second replication when he availed himself of the leave of the court, and filed a third and last one." And the same rule prevails in equity. Marshall v.Vicksburg, 15 Wall. 146.

The question, then, is whether the plaintiff is entitled to recover upon the evidence before the jury, which is certified with the record, and upon which the case was decided in the circuit court. And in this connection two questions have been raised: (1) Whether the company was negligent; and (2) whether the plaintiff was guilty of such contributory negligence as to defeat his right of recovery.

The evidence shows that the car, the coupling fixtures of which were defective, left Hinton, West Virginia, in good condition coming east on the twenty-sixth of December, 1881. It was a flat car loaded with lumber, andwas one of a number of freight cars composing the same train. When it arrived at Staunton, its draw-head was found to have been pulled out or broken, which necessitated the use of what is called "the three-link coupling" in order to carry it to its destination without delay. The evidence also shows that such accidents are of frequent occurrence, and that upon such occasions, to avoid delay in the transmission of freight, the three-link coupling is usually resorted to. It is made by attaching two chains of three links each to hooks some distance apart, on the bottom sill of the damaged car, and then inserting the end links of the chains, placed one upon the other in the sound draw-head of the car to which the coupling is to be made. There they are fastened with a pin, as in ordinary coupling. This mode of coupling is as safe as the ordinary one-link coupling for carrying cars forward, but is more dangerous to make if made while the cars are in motion. A rule, however, of the company expressly forbids employes entering between cars when in motion to uncouple them, and the same rule, in view of the evidence before us, undoubtedly applies to the coupling of cars whore the three-link coupling is made. Its language is as follows: "Entering between cars when in motion to uncouple them, and all such imprudences, are dangerous, and in violation of the rules of this company." A printed copy of the rules, of which this was one, was furnished to the plaintiff, and receipted for by him more than a month before the accident occurred.

The evidence does not show that the plaintiff knew, or with the exercise of reasonable diligence might have known, of the condition of the defective car before it reached Hanover junction, where the accident occurred. Several of the defendant's witnesses testify that they are of the impression they previously called his attention to it, but he himself testifies positively to the contrary. The accident occurred in this way: The train upon which the plaintiff was employed was divided into three sections, just before reaching Hanover junction, on a down grade. The first section remained attached to the engine, and was carried down to the junction. The second or middle section followed a short distance behind; and, when it reached the junction, was switched off on a sidetrack, and was there stopped. The third or rear section was then brought down moving slowly. As it approached the first section standing on the main track, the plaintiff went to the rear end of the first section to make the coupling between the two sections. There he took position, standing with one foot between the rails, the other outside, with his right hand resting on the rear sill of...

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