Norfolk & W. Ry. Co v. Phillips' Adm'r

Decision Date12 June 1902
Citation100 Va. 362,41 S.E. 726
CourtVirginia Supreme Court
PartiesNORFOLK & W. RY. CO. v. PHILLIPS' ADM'R.

INJURY TO SERVANT — INCOMPETENCY OF FELLOW SERVANT—PLEADING—EVIDENCE-MORTALITY TABLES—ASSUMPTION OF RISK.

1. A master is not liable for injuries to one servant by the negligence of another on the ground of the incompetency of the servant, unless the injuries resulted from such incompetency.

2. Where a complaint alleged an injury to have been caused by the negligence of defendant in employing or retaining in its service an incompetent servant, it is necessary to aver that the latter was guilty of some act of negligence directly contributing to the injury.

3. Where a complaint does not allege that an injury to a railroad employe was caused by absence of a conductor, evidence as to such absence is irrelevant.

4. In an action for wrongful death it is not essential to prove the expectation of life of a decedent by mortality tables.

5. Where injury to a servant has been caused by the negligence of a fellow servant concurring with the negligence of the master, the latter is liable as though he only were in fault.

6. Where a master places upon a co-servant the duty of inspecting and repairing machinery, the negligence of the co-servant in the performance of that duty is the negligence of the master.

7. Where a master has exercised ordinary care in providing appliances and keeping them in repair, an accident to an employe' by defects in the appliances is an incident to the service.

Error to circuit court, Carroll county.

Action by the administrator of Andrew E. Phillips, deceased, against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

D. W. Bolen and J. C. Wysor, for plaintiff in error.

Hoge & Hoge and Walter S. Tipton, for defendant in error.

CARDWELL, J. This is a writ of error to a judgment in action of trespass on the case, brought in the circuit court of Carroll county by the administrator of Andrew E. Phillips, deceased, against the Norfolk & Western Railway Company, to recover damages for the death of his intestate, alleged to have been occasioned by the negligence of the defendant company.

There is practically no conflict in the evidence, and it proves the following state of facts:

Betty Baker, about 25 miles from Pulaski, is a small station in Carroll county, on a branch road of the defendant company (plaintiff in error here). Pulaski is a terminal point, at which the company keeps an organized inspection force. From Betty Baker the company has a road running a distance of two or three miles to the Betty Baker mines on the Gossan iron lead, where the Virginia Iron, Coal & Coke Company was mining ore at the time of the disaster out of which this suit arose. The track of this branch runs up to the tipple at the mines, and a little beyond, and the ore cars are pushed up under the tipple, from which they are loaded with ore by employes of the mining company. On the morning of the 30th of January, 1900, the defendant sent some cars to the tipple to be loaded with ore, and four of them were loaded with iron ore by one D. F. Beasley. When he began to load them he discovered that one of them had defective brakes. This car was No. 0, 884, and was standing in front of three other cars to be loaded with ore, and furthest from the tipple in the direction of Betty Baker station to the east. There was absent from the front brake on this front car No. 6, 884 a pawl or finger latch, which is kicked by the brakeman into the cogs of the ratchet wheel to hold the brake in its place after it had been applied by the brakeman with his hands. This brake was good in every other respect, and could be applied by a brakeman and held in position by him, but he could not fasten it so that he could apply other brakes. The rear brake on this same car was defective in its chain being too long, sothat it could not be wound around the brake rod and give the brake its full power. When this car was left at the tipple, Beasley coupled it to the car in the rear of it, and placed chocks under its wheels for the purpose of holding it in position. The car in the rear of it had at least one good brake, and it appears that one good brake is usually sufficient, under ordinary conditions, at least on standard cars. It was claimed by the defendant company that car No. 6, 884 was inspected by the regular inspector at Pulaski on the morning of January 30th, before it started for Betty Baker mines, and nothing wrong was found with it, and that the pawl or iron finger latch to the ratchet wheel on its front brake was lost, and the chain on its rear brake became too slack, in transit. On January 31, 1900, defendant company's freight train No. 75 arrived at Betty Baker station in charge of Conductor Davis, and upon its arrival there Davis remained at the station to look after loading freight, etc., as is claimed, and sent the train, in charge of the engineman, fireman, and two brakemen, — Kegley and McNew — to Betty Baker mines with some empty ore cars to be left there to be loaded with ore, and bring away loaded ore cars, and any other cars which were to be brought away. At the mines there is a siding on which cars are shifted onto the main track and into the train, and when the crew reached there they found the four loaded ore cars on the main track at or near the tipple to be brought away, two cars on the siding completely loaded with cross-ties to be brought away, and two cars on the siding partially loaded with cross-ties, which were to be left for the completion of their loads. This siding leaves the main line on the southeast of the tipple, connecting with it again lower down, held eight or ten cars, and a number of cars can stand on the main track west of the western end of the siding. The grade of the tracks at the mines appears to be comparatively light, but that of the main line increases on leaving the siding, and In the direction of Betty Baker station, and is a down grade. When necessary or convenient to do so, cars on the main track west of the siding are dropped on the siding by gravitation, and stopped with brakes; and the siding is also, as before stated, used otherwise for switching purposes. A derailing switch is placed in the siding near its eastern end; and nearly opposite this derailing switch, but a little east of it, there is a derailing switch in the main line. On the morning of January 31, 1900, plaintiff's intestate and four other section hands of the defendant company employed on that part of its line had loaded some cross-ties upon cars on the siding at the Betty Baker mines, to be distributed over the road, and were told by their foreman to go down the railroad on a hand or pump car ahead of the train, which they proceeded to do. As before stated, the train crew had brought some four or five empty cars to be left at the mines to be loaded with ore. There were two cars on the siding completely loaded with cross-ties. West of them, in the direction of the ore tipple, there were two cars partially loaded with iron ore, fastened together in couples, on the main line west of the siding. The engine and the empty cars stood on the main track, and the duty then to be performed by the train crew, or the movement to be made by them, was to take away the loaded ore cars on the main track, and put the empties in their places, and to take away the two loaded tie cars on the siding, and let the two partially loaded tie cars remain on the siding. The first thing done in this movement was to take all of the tie cars, by the use of the engine, from the siding, and place them on the main track against the empty cars. Brakemen Kegley and McNew continued the movement by undertaking to drop the loaded ore cars down on the siding by gravitation, and to stop them with the brakes. If they had succeeded in this part of the movement, then the engine would have pushed the tie cars and the empty cars up the main track, and left the partially loaded tie cars there to be drifted on the siding, where they were to remain, and left the empty cars on the main track above the siding to be loaded with iron ore, and would then have returned with the loaded tie cars and gone upon the siding at its east end and coupled to the ore cars which had been drifted on the siding, and then gone away on its journey. But when Brakemen Kegley and McNew started to make this part of the movement, —i, e., the drifting of the cars on the siding by gravitation, —Beasley told Kegley that he was the man that put the chocks under the front car, and that he (Kegley) had better let that car alone; that the brakes were not good, and would not hold it, and it would go down the mountain with him. Kegley replied, "Better had stop, " and proceeded to take out the chocks, and to turn the two front ore cars loose, and got upon the front car at the point where the pawl or the iron finger latch was gone, and began to try to use the front brake, but, finding that he could not make it hold, went to the rear brake, and found that it, too, would not work, because of the loose chain thereon. The rear brake of the second car was on, but was not sufficient to hold the car, certainly not both of them. As soon as Kegley started the two front cars, Beasley told McNew to help Kegley, but McNew only looked at Kegley, and then turned the other two ore cars loose. Finding that the two cars he had started could not be controlled with •the brakes on them, and that they were getting away from his control, Kegley, for his own safety, jumped off, and the cars, with rapidly increasing speed, "ran wild, " overtaking the section men on the hand car In a cut about a mile from the mines, and ran into them at a high rate of speed, killingfour of them, including plaintiff's intestate.

There is no suggestion in the record of fault on the part of the deceased.

The ruling of the circuit court in not sustaining the demurrer to the fourth count of plaintiff's...

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