Richmond Locomotive & Mach. Works v. Ford

• Decision Date: 17 June 1897
• Citation: 94 Va. 627,27 S.E. 509
• Court: Virginia Supreme Court
• Parties: RICHMOND LOCOMOTIVE & MACHINE WORKS v. FORD.

27 S.E. 509

94 Va. 627

RICHMOND LOCOMOTIVE & MACHINE WORKS

v.FORD.

Supreme Court of Appeals of Virginia.

June 17, 1897.

Negligence—Pleading— Master and Servant— Evidence—Qualification of Expert-Fellow Servant—Vice Principal—Dangerous Premises—Obvious Risk—Instructions.

1. A declaration that set forth when, where,

and under what circumstances plaintiff was in-jured by the negligence of defendant's servants, was not demurrable because it failed to state in what capacity—whether as trespasser, licensee, or employe—plaintiff was on defendant's premises.

2. In an action by an employe for personal injuries, where the declaration alleged that defendant was in fault in not furnishing certain implements then in its yard and well known to it, it was not necessary to state what they were, since the only effect of stating that proper implements were in the yard was to limit the evidence to them.

3. In an action by an employe for injuries received while moving heavy wheels, it was error to permit plaintiff to prove the manner in which such wheels were handled in another shop.

4. Permitting a witness to testify as an expert will not be reversed unless it clearly appears that he was not qualified, since the question of qualification rests largely in the discretion of the trial court.

5. In an action by an employ for injuries received while moving wheels, it was error to permit a witness to testify that he quit defendant's service after plaintiff's injury "because they would not move the tires so as to get room to move the wheels."

6. Where plaintiff was employed as one of a gang to do heavy moving, under a boss who worked with and directed them, but received his instructions from the foreman of the shop, and had no power to discharge members of the gang, the boss was a fellow servant, and not a vice principal.

7. Where plaintiff was employed as one of a gang to move wheels, under a boss who received his instructions from the foreman of the shop, and the premises were safe when the boss directed them to move the wheels, hut were rendered unsafe by the negligent manner in which he directed the work to be done, defendant was not liable for injury thereby resulting to plaintiff, since it resulted from the negligence of a fellow servant.

8. Where plaintiff was injured by the negligent manner in which a fellow servant directed work to be done, but the danger of doing work in that manner was obvious and known to the plaintiff, defendant was not liable for failure to warn him of the danger.

9. Where an employs was injured while moving heavy wheels, it was error to submit to the jury the question whether defendant was negligent in not instructing its employes in what manner such wheels could be handled to avoid danger, when there was no evidence that such manner was known.

Error to circuit court of city of Richmond.

Action by Robert L. Ford, an infant, by Monroe Ford, his next friend, against the Richmond Locomotive & Machine Works. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Christian & Christian and Cabell & Cabell, for appellant.

Meredith & Cocke, for appellee.

BUCHANAN, J. Ford, the defendant in error, who was injured while employed by the Richmond Locomotive Works, instituted his action in the circuit court of the city of Richmond to recover damages therefor. A trial was had in that court, but the jury failed to agree. Ford afterwards dismissed that case, and brought his action in the law and equity court of that city, upon the same cause of action. A motion was made by the locomotive works, in the last-named court, to have the cause removed to the circuit court, where the first action was brought. This motion was overruled and that action of the court is the first error assigned in the petition. In oral argument, however, that assignment of error was abandoned, and properly so, in our opinion.

The next error assigned is to the action of the court in overruling the demurrer, which was to the whole declaration, and to each count thereof. The objection made to the first count is that it does not show in what capacity the plaintiff was upon the premises of the locomotive works when injured, —whether as trespasser, licensee, or employe.

This question was considered in the case of Jones v. Cotton Mills, 82 Va. 140, 147, 148, and such averment held to be unnecessary where the declaration distinctly sets forth (as is done in this case) when, where, in what manner, and under what circumstances, the plaintiff was injured by the default, negligence, and improper conduct of the defendant's servants.

The objection made to the third count is that it alleges that the defendant was in fault in not furnishing to the plaintiff certain implements for moving wheels then in the defendant's yard, and well known to it, but fails to state what (hose implements were.

There was no necessity for stating what they were. The only effect of stating that proper implements for moving the wheels were in defendant's yard was to limit the plaintiff's evidence to such implements. Neither did the court err in overruling the defendant's motion to require the plaintiff to file a bill of particulars under that count.

The demurrer to the whole declaration and to each count thereof was properly overruled

The court permitted the plaintiff, over the defendant's objection, to prove the manner in which large driving wheels of locomotives were handled at the shops of the Chesapeake & Ohio Railway Company. In this the court erred. A witness having sufficient knowledge may testify as to the general practice of machine shops in moving such wheels, and the comparative safety of different methods, but it is not competent to show that the different method of another shop is better than that of the defendant. It is supposed that in such matters even the skillful and experienced will frequently differ in their choice of instrumentalities. A party should not be judged to be negligent for not conforming to some other method believed by some to be less perilous. 1 Bailey, Pers. Inj. § 1744. The fact that the shops of the Chesapeake & Ohio Railway Company were located near to those of the defendant cannot affect the question.

It is also assigned as error that Duffy, one of the witnesses of the plaintiff, was permitted to testify as an expert, when it was not shown that he had such knowledge as entitled him to speak as such. It is not altogether clear that the witness had sufficient knowledge upon the subject to be considered an expert, but a trial court will not be reversed for allowing a witness to testify as an expert unless it appears clearly that he was not qualified, as the question of the wit-ness' qualification is largely in the discretion of the trial court. Perkins v. Stickney, 132 Mass. 217; 1 Greenl. Ev. (14th Ed.) § 440, notes.

It was error in the court to allow the witness Gordon to testify that he quit the service of defendant the morning after the plaintiff was injured "because they would not move the tires so as to get room to move the wheels." This evidence was clearly inadmissible. The liability of the defendant was to be determined from what took place before and at the time of the accident. What the employes of the defendant did afterwards, and their reasons for such action, were irrelevant and immaterial.

The next assignment of error is to the action of the court in giving and refusing to give certain instructions.

The plaintiff asked for 8; the defendant, for 13; and, in lieu of those asked for by the parties, the court gave 13 instructions of its own, some of which, however, were the same as asked for. While the instructions asked for and given are quite numerous, the questions of law involved in the case upon the merits are few. One of these questions is whether Fogg, the leader or foreman of the gang of hands with which the plaintiff was working when injured, was the representative or vice principal of the defendant, or whether he was a fellow servant of the plaintiff.

It appears that the plaintiff, who was about 19 years of age, was employed as one of a lot of hands, known as the "laborers' gang, " by the defendant, at its...