Richmond Granite Co v. Bailey

• Decision Date: 06 February 1896
• Citation: 24 S.E. 232,92 Va. 554
• Parties: RICHMOND GRANITE CO. v. BAILEY.
• Court: Virginia Supreme Court

24 S.E. 232

92 Va. 554

RICHMOND GRANITE CO.

v.BAILEY.

Supreme Court of Appeals of Virginia.

Feb. 6, 1896.

Master and Servant—Fellow Servants—Negligence — Action for Injuries — Declaration—Appeal—Harmless Error.

1. The foreman of a stone quarry owned by a corporation, whose duties require him to exercise a general superintendence over the men, and to make and abrogate rules for their guidance, is not a fellow servant of one of such men.

2. Plaintiff was loading a car with stone as directed by the foreman. A wire rope, attached at one end to the drum of an engine, was fastened at the other end to a car, and the engine, winding the rope around the drum, drew ittant, and. as it straightened out, it struck plaintiff. It was the custom, when a car was about to be moved, for one P. to give warning to those in danger At the time of the accident P. attached the rope to the car, and was about to give the warning, when the foreman ordered the engineer to start the engine without delay. The foreman claimed that he gave the warning. Held, that the acts and omissions of such foreman were the efficient cause of the injury.

3. In an action for injuries caused by defendant's negligence, where there is evidence of negligence by one only of defendant's servants, not a fellow servant of plaintiff, it is harmless error to give an instruction which makes defendant responsible for the omission of any of its servants, even though they might be plaintiff's fellow servants.

4. In an action for injuries caused by defendant's negligence, the declaration need not allege plaintiff's ignorance of the danger to which he was exposed.

Error to circuit court, Henrico county.

Action by Campbell Bailey against the Richmond Granite Company for personal injuries caused by defendant's negligence. Prom a judgment for plaintiff, defendant brings error. Affirmed.

Rutherfoord & Page, for plaintiff in error.

Edmund Waddill, Jr., and P. M. Woon, for defendant in error.

KEITH, P. This is an action of trespass on the case, brought in the circuit court of the county of Henrico, by Campbell Bailey, to recover damages for an injury received under the following circumstances, while in the employment of the Richmond Granite Company: At the time of the accident Bailey was engaged in loading a car with stone, as directed by W. J. Campbell, the foreman in charge of the granite company's quarry. It becoming necessary, in the progress of the work, to move another car, a wire rope, attached at one end to the drum of an engine, was fastened at the other end to the car which it was desired to move, and, the engine winding the wire rope around the drum, it became taut, and, as it straightened out, struck, with great violence, the defendant in error, inflicting upon him very serious injuries.

The defense made upon the part of the company is—First, that Bailey was guilty of contributory negligence, but of that there is not a particle of evidence, and I shall dismiss it without further notice; and, in the second place, it is contended that the only negligence of which he can complain is that of a fellow servant, Henry Payne. It seems that the usual habit was, when a car was about to be moved in the manner just described, that it became the duty of Payne to give warning to those endangered by the tightening of the rope, so that they might do what was necessary to protect themselves. Upon this occasion it seems that Payne, having attached the loose end of the rope to the car about to be moved, the other end being, as we have seen, fastened to the drum of the engine which supplied the motive power, was about to get upon the car as was usual, and give the accustomed warning, when Campbell, the foreman, anticipated the usual order of procedure, and, being in a somewhat impatient mood, ordered the engineer to start the engine without delay, which was done. Campbell claims that he gave warning; but, granting that he did, it was not heard, and was given under circumstances which rendered it extremely unlikely, if not impossible, that Bailey should hear. Bailey expected the warning from Henry Payne, who was upon the car to be moved. It was given by Campbell when the car which Bailey was loading was interposed between them, and, in addition, the noise and...