Mcdonald's Adm'r v. Norfolk & W. R. Co

• Decision Date: 22 July 1897
• Citation: 27 S.E. 821,95 Va. 98
• Court: Virginia Supreme Court
• Parties: McDonald's adm'r v. Norfolk & W. R. co.

27 S.E. 821

95 Va. 98

McDonald's adm'r

v.Norfolk & W. R. co.

Supreme Court of Appeals of Virginia.

July 22, 1897.

Master and Servant— Railroads — Defective Appliances—Assumption of Risk-Fellow Servants.

1. If a brakeman is aware, on entering the railroad's employ, that he will be constantly obliged to perform the dangerous task of coupling together mismatched couplers, and continues in the service, and frequently performs that task, without making complaint to the master, or making request that the danger be lessened, he assumes the risk.

2. An engineer and a brakeman on the same train are fellow servants.

Error to circuit court, Pulaski county.

Action by Charles O. McDonald's administrator against the Norfolk & Western Railroad Company for personal injuries. From a judgment for defendant, plaintiff brings error. Affirmed.

J. C. Wysor and F. C. Morton, for plaintiff in error.

Phlegar & Johnson and J. E. Moore, for defendant in error.

RIELY, J. This is the sequel of the case of Railroad Co. v. McDonald's Adm'r, reported in 88 Va. 352, 13 S. E. 706.

It is a general principle of the law of master and servant that the master shall use ordinary care and diligence to provide reasonably safe and suitable machinery and appliances for the use of the servant, and the master will be held liable for an injury to the servant which results from the omission to exercise such care and diligence. 3 Elliott, R. R. § 1273; Railroad Co. v. Ampey, 93 Va. 108, 25 S. E. 226; Zinc Co. v. Martin's Adm'r, 93 Va. 791, 22 S. E. 869; Locomotive Works v. Ford (decided at the present term) 27 S. B. 509; Railroad Co. v. McDade, 135 U. S. 551, 10 Sup. Ct. 1044; and Railway Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756.

It is also a settled principle that a servant, when he enters the service of the master, assumes all the ordinary risks of such service. He assumes, as a general rule, all risks from causes which are known to him, or which are open and obvious to observation, and must exercise reasonable care and caution for his own safety while engaged in the master's service. 3 Elliott, r. r. §§ 1288, 1296; Clark's Adm'r v. Railroad Co., 78 Va. 709; Zinc Co. v. Martin's Adm'r, supra; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322; Turtle v. Railway Co., 122 U. S. 1S9, 7 Sup. Ct. 1166; Railroad Co. v. McDade, 135 u. S. 554, 10 Sup. Ct. 1044; Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298; Pacific Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530; and Sweeney v. Envelope Co., 101 N. Y. 520, 5 N. E. 358.

It is likewise well settled that, if the servant is injured by reason of a defect in the machinery or appliance furnished by the master for the use of the servant, or its unsuitableness, which defect or unsuitableness is known to him, and the servant, after such knowledge, remain in the service of the master, and continue to use the machinery or appliance without giving notice of the defect or unsuitableness to the master, or without any promise by the master to render the same less dangerous, he will be taken to have assumed the risk of all danger to be reasonably apprehended from its use, and is bound to exercise the care and caution which the perils of the business demand. Clark's Adm'r v. Railroad Co., supra; Railroad Co. v. Hafner's Adm'r, 90 Va. 621, 19 S. E. 166; Railroad Co. v. McDonald's Adm'r, 88 Va. 352, 13 S. E. 706; Hough v. Railway Co., 100 U. S. 213; Tuttle v. Railway Co., 122 U. S. 189, 7 Sup. Ct. 1166; Railroad Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044; and Pacific Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530.

It is by the application of these principles that this case is to be solved.

The intestate of the plaintiff was a brake-man on a passenger train of the defendant company, and lost his life in attempting to couple the baggage car and the second-class car. The complaint is that his death was due to the fact that the couplers on the two cars were mismatched.

It appears from the record that the defendant had been using the Miller coupler on its cars, and was gradually substituting the Janney coupler in its place, but that the change from the one to the other had not been wholly effected. It was in attempting to couple the said cars, one of which was equipped with a Miller coupler and the other with a Janney coupler, that the intestate of the plaintiff was fatally injured.

The case is brought before us upon a certificate of the evidence, and Is to be considered upon the principles of a demurrer to the evidence (Code, § 3484), which are too well settled and familiar to be here stated. Trout v. Railroad Co., 23 Grat. 619; Johnson's Adm'r v. Railway Co., 91 Va. 171, 21 S. E. 238; and Casualty Co. v. Chambers, 93 Va. 138, 24 S. E. 896. They will be applied in the consideration of the case, without further reference to them.

There is no evidence that either of the couplers, prior to the accident, was out of order. They were simply of different designs, in consequence of which they were mismatched, and would not couple the one with the other, but a link and pin had to be used to effect the coupling.

The contention of the plaintiff in error is that, the couplers being mismatched, the coupling of the cars was thereby rendered more difficult and dangerous, and this was a violation of the duty resting on the defendant to furnish its servants with reasonably safe and suitable machinery and appliances with which to work, and rendered it liable in damages for the injury.

It was held by this court in Railroad Co. v. Brown, 91 Va. 668, 22 S. E. 496, that the use of mismatched couplings on freight cars in the same train was not negligence per se inthe railroad company. Whether their use on cars in a passenger train would constitute negligence, it is unnecessary to decide, as the decision of the case must turn upon the application of the other well-settled principles hereinbefore stated. See, however, Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298.

It appears that McDonald, when he entered the service of the defendant, took the place of the witness Davis as brakeman; and Davis testified on the trial that these mismatched couplers were used by the company when McDonald entered its service. It was also abundantly shown that the fact that the couplers were mismatched was open and obvious, as was also the danger of coupling cars fitted with them. It was further proved by Davis that McDonald made several trips with him before he was duly installed as brakeman, in order that he might become familiar with the duties of the position; and that he (Davis) pointed out to him the mismatched couplers, and instructed him how to couple them so as to keep from being hurt. McDonald seeing, when he entered the service of the defendant, that the mismatched couplers were used by it, and being informed as to the danger attending their use, which was also open and obvious, he assumed, under the law, the risks incidental to their use, from which it results that there can be no recovery for the injury he thereby sustained.

It should be also added that it does not appear from the evidence that he even made any complaint to the company of the use of the mismatched couplers, or of the danger resulting from their use, and required the same to be...