Young v. West Va. C. & P. Ry. Co
Decision Date | 04 April 1896 |
Citation | 42 W.Va. 112,24 S.E. 615 |
Court | West Virginia Supreme Court |
Parties | YOUNG. v. WEST VIRGINIA C. & P. RY. CO. |
Master and Servant — Assumption op Risk — Fellow Servant—Contributory Negligence.
1. A party who enters the service of a railroad company as a brakeman takes upon himself the natural and ordinary risks and perils incident to the performance of such services, including the perils arising from the carelessness and negligence of those who are in the same employment as fellow servants.
2. If one brakeman on a freight train is injured by the carelessness and negligence of another brakeman upon the same train in the performance of his ordinary duties, they are fellow servants, and the railroad company is not liable for the injury thus occasioned.
3. Where a brakeman, in attempting to withdraw the coupling pin and uncouple a car from the engine and tender, stands with one foot on the bumper belonging to each car, and, with his lantern in his left hand, leans forward, and reaches with his right to withdraw the coupling pin, which has already been withdrawn by a fellow brakeman, and the cars separating cause him to fall between the cars, and to be run over and injured, he must be regarded as negligent, and his negligence must be considered the proximate cause of his injury.
(Syllabus by the Court.)
Error to circuit court, Tucker county.
Case by Charles W. Young against the West Virginia Central & Pittsburgh Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.
C. W. Daily and L. D. Strader, for plaintiff in error.
A. B. Parsons and Dayton & Dayton, for defendant in error.
On the 8th day of December, 1891, Charles W. Young brought an action of trespass on the case in the circuit court of Tucker county against the West Virginia Central & Pittsburgh Railway Company, claiming damages to the amount of $30,000 on account of personal injuries received by him while acting as brakeman on one of defendant's freight trains. The defendant demurred to the plaintiff's declaration, and the same was overruled by thecourt. The plea of not guilty was Interposed, and issue was thereon joined, and on the 10th day of March, 1894, the defendant tendered and asked leave to file four special pleas in writing, numbered 1, 2, 3, and 4, which were objected to, and the objections overruled. The pleas were filed, and the plaintiff excepted, and thereupon the plaintiff replied generally to said four pleas, and also tendered-two special replications, numbered 1 and 2, to said four pleas, to the filing of which the defendant objected. The court overruled the objection, and allowed said special replications to be filed, and the defendant excepted. The defendant rejoined generally to said special replication No. 2, and asked leave to file a special rejoinder in writing to said special replication No. 1, to which the plaintiff objected, and the objection was sustained, and the defendant excepted, and tendered its bill of exceptions No. 1, setting forth said special rejoinder, which was signed, sealed, and made a part of the record. Said special pleas Nos. 1, 2, 3, and 4, and said special replies Nos. 1 and 2, read as follows:
etc.
etc.
On the 10th day of March the defendant, by its general rejoinders to said two special replications, put itself upon the country. Issue was joined, and the case submitted to a jury, which resulted in a verdict in favor of the plaintiff for $5,000, and on motion of the defendant the verdict was set aside, and a new trial...
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