Young v. West Va. C. & P. Ry. Co

Decision Date04 April 1896
Citation42 W.Va. 112,24 S.E. 615
CourtWest Virginia Supreme Court
PartiesYOUNG. 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in his left hand, leans forward, and reaches with his right to withdraw the coupling pin, which has already been withdrawn by a fellow brakeman, and the cars separating cause him to fall between the cars, and to be run over and injured, he must be regarded as negligent, and his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.

ENGLISH, J. 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:

"Defendant's Special Plea No. 1. For further plea in this behalf the defendant says that the plaintiff ought not to have and maintain this, his action, because, as the defendant avers, that on the 6th day of June, 1891, the said plaintiff received the sum of $239.17 on account of the injuries of which he complains in this action, $164.17 of which was paid to him from what is known as the 'West Virginia Central Relief Fund, 'which is a fund raised for the benefit of the employes of the defendant company injured while in the discharge of their duties as such employes, to which fund said defendant was a large contributor, and $75 of which amount was paid directly by the defendant; and on the day aforesaid the plaintiff, in writing, acknowledged the receipt of said sums of money in consideration of the payment of the same to him, released the said defendant from all claims and demands for damages, indemnity, or other form of compensation on account of the injuries complained of in his declaration in this action, and waived any and all claims he might have or be supposed to have then or thereafter as growing out of such injuries; and this the. said defendant company is ready to verify."

"Defendant's Special Plea No. 2. For further plea in this behalf the defendant says the plaintiff ought not to have and maintain this, his action, because the defendant avers that on the 6th day of June, 1891, the said plaintiff received the sum of $239.17 on account of the injuries of which he complains in this action from the said defendant company, and on the date aforesaid the plaintiff, in writing, acknowledged the receipt of said sum of money, and in consideration of the payment of the same to him released the said defendant from all claims and demands for damages, indemnity, or other form of compensation on account of the injuries complained of in this declaration in this action, and waived any and all claims he might have or be supposed to have then or thereafter against the said defendant as growing out of said injuries, and this the said defendant company is ready to verify."

"Defendant's Special Plea No. 3. For further plea in this behalf the defendant says the plaintiff ought not to have and maintain this, his action, because the defendant avers that on the 6th day of June, 1891, the said plaintiff received the sum of $239.17 on account of the injuries of which he complains in this action, which sum of money was paid to him from what is known as the 'West Virginia Central Relief Fund, ' which is a fund raised for the benefit of the employes of the defendant company injured while in the discharge of their duties as such employes; to which fund the said defendant was a large contributor, which amount was paid for and on behalf of the defendant company to the said plaintiff; and on the day aforesaid the plaintiff, in writing, acknowledged the receipt of said sum of money, and in consideration of the payment of the same to him released the said defendant from all claims and demands for damages, indemnity, or other form of compensation on account of the injuries complained of in his declaration in this action, and waived any and all claims he might have or be supposed to have then or thereafter as growing out of such injuries. This the said defendant company is ready to verify."

"Defendant's Special Plea No. 4. For further plea in this behalf the defendant says that the plaintiff ought not to have and maintain this, his action, because, as the defendant avers, on the 6th day of June, 1S91, the said plaintiff received the sum of $239.17 on account of the injuries of which he complains in this action, part of which was paid to him from what is known as the 'West Virginia Central Relief Fund, ' which is a fund raised for the benefit of the employes of the defendant company injured while In the discharge of their duties as such employes, to which fund the said defendant was a large contributor, and part of which amount was paid in part directly by said defendant; and on the date aforesaid the plaintiff, in writing, acknowledged the receipt of said sum of money, and in consideration of the payment of the same to him released the said defendant from all claims and demands for damages, indemnity, or other form of compensation on account of the injuries complained of in his declaration in this action, and waived any and all claims he might have or be supposed to have then or thereafter as growing out of such injuries; and this the said defendant company is ready to verify."

"Plaintiff's Special Reply No. 1. The plaintiff, for special reply to the special pleas Nos. 1, 2, 3, and 4, filed in this cause by the saiddefendant, says he ought not to be precluded from maintaining his said action because of the matters in said pleas contained, because he says that on the Gth day of June, 1891, when the said paper writing set forth in said plea was signed by him, the plaintiff, he, the said plaintiff, was an infant under the age of 21 years, and not bound by said writing aforesaid; and the same was repudiated immediately by him, of which repudiation the said defendant had notice. And this he Is ready to verify, and wherefore he prays judgment, " etc.

"Plaintiff's Special Reply No. 2. And the said plaintiff, for further special reply to the special pleas Nos. 1, 2, 3, and 4, filed by the said defendant, says he ought not to be precluded from having and maintaining his said action by reason of the matters set forth in said pleas; because he says the said paper writing, dated June 6, 1891, was procured to be executed by him by the false, fraudulent, and deceitful representations and concealments of the said defendant by and through its agent, who procured said writing to be executed, to the effect that said writing was nothing more than a receipt for dues due to him as a member of said relief association, and would not in any manner affect or impair any claim, right, or demand which he might have or maintain against said defendant railroad company for the several wrongs and grievances set forth in the declaration in this case, which said false, fraudulent, and deceitful representations so made by the said defendant by and through its said agent who procured the execution of said writing aforesaid, were at the time believed and relied upon by the plaintiff, and caused him to execute said writing aforesaid; all of which he is ready to verify. Wherefore he prays judgment, " 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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12 cases
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