Richmond & D. R. Co v. Norment

• Decision Date: 01 December 1887
• Citation: 4 S.E. 211,84 Va. 167
• Court: Virginia Supreme Court
• Parties: Richmond & D. R. Co. v. Norment.

4 S.E. 211

84 Va. 167

Richmond & D. R. Co.

v.Norment.

Supreme Court of Appeals of Virginia.

December 1, 1887.

1. Railroad Companies—Negligence—Doty to Employes.

It is the duty of railroad companies to provide "repair tracks, " and danger signals, and all appliances reasonably necessary to insure the safety of employes, and to properly instruct their officers; and, if they omit to do so, they will be liable for damages for injuries sustained, unless such injuries are due to want of ordinary care on the part of those injured.

2. Same—Negligence—Duty to Employes—Eibk of Employment.

If, owing to the negligent and dangerous manner in which a railroad company carries on its operations, an employe receives injuries while performing his duties, he is not prevented from recovering damages from the company by reason of his haying continued in its service with full knowledge of the manner in which operations were conducted, and without complaint.

3. Same—Negligence—Collision.

The plaintiff, while performing his duties as "overhauler" on the defendant's railroad, was at work on a branch track fixing a car, and another car was shifted along the same track, and, colliding with the line of cars under which plaintiff was at work, caused the injuries complained of. Held, that the conductor in charge of the shifting-engine was guilty of negligence in shifting the car in that direction without first ascertaining if any one was at work under the cars with which the shifted car might collide, and for such negligence the company was responsible.

4. Master and Servant—Negligence—Fellow-Seevant.

An employe of a railroad company received injuries, while executing his duties as " overhauler" of cars, through the negligence of the engineer of a shifting-engine employed by the same company. Held, that the two employes, being engaged in different departments, were not fellow-workmen in the sense which would relieve the employer from liability for an injury suffered by one through negligence of the other.'

5. Damages—Personal Injuries.

In estimating the damages an employe is entitled to receive for injuries sustained while performing his duties, the jury should take into consideration his physical and mental suffering, medical expenses, and loss of wages; and, when the injuries so demand, a proper compensation should be allowed for his being prevented from following such calling as, but for the injuries, he could have followed.

6. Trial—Instructions—Request fob Particular Charge.

When instructions asked have been refused, but the instructions given cover the substance of those asked, and the party has not been aggrieved by the refusal, it is no cause for reversal.

Fauntleroy, j., dissenting.

Error to circuit court, city of Richmond.

This was an action brought by S. F. Norment against the Richmond & Danville Railroad Company to recover damages for injuries sustained by said Norment while in the discharge of his duties as an employe of that company. The judgment below was in the plaintiff's favor, and the defendant brought error.

H. IT. Marshall, for plaintiff in error. Meredith & Cocke, for defendant in error.

Richardson, J. This is a writ of error to a judgment rendered by the circuit court of the city of Richmond, December 23, 1885, in an action of trespass on the case, wherein S. F. Norment was plaintiff, and the Richmond & Danville Railroad Company was defendant. The object of the suit was to recover damages for an injury done to the plaintiff by and through the alleged negligent acts and omissions of the said company's agents.

When the jury had heard the evidence on both sides, the plaintiff asked for the following instructions: (1) "The court instructs the jury that if they believe from the evidence that if the plaintiff was required by the defendant to go under one of the defendant's cars, as and for the purpose alleged in the declaration, and not knowing, and having no reason to believe, that another car would be shifted upon the track upon which the First-mentioned car stood, and, while there as aforesaid, a car, by the order of the conductor of the shifting-engine, was shifted upon the said track, without the plaintiff being notified by the ringing of the bell on the said engine, if it was usual so to ring when so shifting a car from one track to another, or by other means, or without knowing, or having any opportunity to learn, of said shifting, and that, by reason of said shifting, the plaintiff was, as in the declaration alleged, injured, then the jury must find for the plaintiff." (2) "The court instructs the jury that, if they should find for the plaintiff, they may, in estimating the damages, take into consideration his physical and mental suffering arising from said injury, his medical expenses in getting his injuries healed, his loss of wages for the time that he was prevented by said injuries from working, and proper compensation for his being deprived by the said injuries from following such calling or business as he could have followed but for said injuries."

And the defendant moved the court to instruct the jury as follows: "First. That if the jury believe, from said testimony, that the plaintiff worked as over-hauler in the yard of the defendant at Richmond, in which there were numerous railroad tracks, on which freight and other cars were being often moved about by the shifting-engine used for that purpose, to-wit, cars that were moved from one point to another, as occasion required, —some to be loaded, some to be unloaded, some to be placed upon a track in the yard, so that the over-haulers might make necessary repairs, and the greasers could grease them, — and that this shifting and moving by the shifting-engine and cars were for the purposes aforesaid, and also for the purpose of making up trains, so often going on during both day and night, with the knowledge of the overhaulers, the said shifting-engine being used only for the purposes aforesaid, and for the purpose of carrying to the Manchester yard of the said defendant, just on the opposite side of James river from Richmond, cars requiring more than ordinary repairs, or cars sent there for other purposes, and that its principal business was shifting cars and trains in the yard at Richmond, where the overhaulers worked, and all this with the knowledge of the overhaulers themselves; that the conductor, the manager of the shifting-engine, and the engineer thereof were co-employes; and, if the jury believe that the plaintiff sustained the injuries complained of by reason of the negligence of the conductor or engineer of the shifting-engine, —he cannot recover, unless the jury believe, from the evidence, that the conductor or engineer—one or both—were incompetent to discharge the duties properly of the position they respectively occupied, and that the defendant had knowledge of such incompetency." "Secondly. That If the jury believe, from the evidence, that if the plaintiff had acted in suchmanner as any prudent person would have acted under the same circumstances, and that, if he himself had not acted so imprudently, he would not have received the injury he sustained, he is not entitled to recover, although they may believe from the evidence that the conductor or engineer of the shifting-engine may also have acted negligently."

But the court refused to give the plaintiff's instruction No. 1, but did give his instruction No. 2; and the court refused to give the two instructions asked for by the defendant, and in lieu thereof, and of plaintiff's No. 1, gave the following two instructions: "The jury are instructed that the defendant is not responsible to the plaintiff for injuries resulting from the negligence of either Robinson or Teller, unless they believe that he was not competent for or careful in the discharge of the duties assigned him, and that the defendant either knew, or by the exercise of proper care ought to have known, that he was not competent or careful. But if the jury shall believe that the defendant had failed to exercise all reasonable care and caution in its instructions to and control of Robinson and others, employes in the yard, and in furnishing them with, and requiring them to use, all means and appliances reasonably necessary for the protection of its employes while engaged in such work as the plaintiff was engaged in when injured, they should find for the plaintiff, unless they further believe that the plaintiff contributed to the accident by his own failure to exercise such care and caution as an ordinarily prudent man with his knowledge, or opportunities of knowledge, of the danger, ought to have exercised for his own protection, in which event they should find for the defendant."

And thereupon the defendant, after excepting to the action of the court in refusing to give its instructions No. 1 and No. 2, and in giving the plaintiff's instruction No. 2, moved the court to give the jury the instruction designated as the defendant's instruction No. 3, as follows: "If the jury believe, from the evidence, that the plaintiff, when he went into the employment of the defendant as an employe to work in its Richmond yard as greaser of cars and overhauler of cars, had an opportunity, after being there for one month or more, to familiarize himself with the manner in which the shifting of cars with the shifting-engine was carried on, and with the means used to avoid accidents, and did not complain to the defendants or any of its agents of the said manner in which the operations were carried on, but, with the full knowledge of the manner of conducting said operations, continued voluntarily in such employment, he cannot recover in this action for the injury he sustained, although such injury may have resulted from the negligence of the conductor and engineer, or either, of the shifting-engine, his co-employes, if the jury believe they were competent and fit persons for the discharge of the duties of the respective positions they held, or that, if they...