Moon's Adm'r v. Richmond & A. R. R. Co.

• Decision Date: 24 April 1884
• Citation: 78 Va. 745
• Parties: MOON'S ADM'R v. R. AND A. R. R. COMPANY.
• Court: Virginia Supreme Court

78 Va. 745

MOON'S ADM'R v. R. AND A. R. R. COMPANY.

Supreme Court of Appeals of Virginia.

April 24, 1884

Error to judgment of circuit court of city of Richmond, rendered 21st December, 1881, in action of trespass on the case wherein E. B. Spencer, administrator of George Moon deceased, is plaintiff, and the Richmond and Alleghany Railroad Company, defendant. The object of the action, which was instituted under Code 1873, ch. 145, § 7, is to recover damages, not exceeding $10,000, for the killing of said George Moon, by the wrongful act, neglect, and default of the defendant. Verdict and judgment for the defendant.

The opinion fully states the facts.

R T. Hubard, for the appellant.

Johnston, Williams & Boulware, and Carrington &amp Fitzhugh for the appellee.

OPINION

FAUNTLEROY, J.

This is a writ of error to a judgment of the circuit court of the city of Richmond, rendered on the 21st December, 1881, in a suit in which E. B. Spencer, administrator of George Moon, deceased, is plaintiff, and the Richmond and Alleghany Railroad Company is defendant.

The action is for recovery of damages from the defendant company of $10,000 for the killing of the plaintiff's intestate, George Moon, by the negligence of the said company, and through no contributory negligence of the said decedent, who was an employee of the said company, and who, as such, was faithfully performing his duty at the time of the accident which caused his death. It appears from the record in the case that the Richmond and Alleghany Railroad Company was incorporated by act of the general assembly of Virginia, and acquired control of all the property, rights and franchises of the James river and Kanawha Company, upon the terms and conditions (among others) that the said company would construct and equip a railroad from Richmond, up the valley of the James river, to Clifton Forge within twenty months, which shall be a first-class railroad, with steel rails, … and equipped with ample accommodation, & c., & c. They were required to deposit $500,000 as security, of which $50,000 might be withdrawn for each successive twenty-five miles which should be, in the estimation of the board of public works, " fully completed." Acts 1878-9, ch. 139, §§ 1 and 4. The company reported as " fully completed" and opened to freight and passenger traffic the line from Richmond to Joshua Falls on the James river--some 125 miles--and had become fully liable to the public for any failure on its part to comply with the above recited conditions, when the aforesaid George Moon entered its service, about the 6th of July, 1881.

On Monday morning, July 25th, 1881, a material train, which, on Saturday next before, had been run up to Joshua Falls, was started down the road, running backwards, with the engine and tender not turned around, but simply detached from the front of the train and coupled at the rear, the pilot of the engine being attached to the rear car, which was the captain's caboose car.

George Moon was one of a party of colored men who had been engaged for this company, in Halifax county, by Captain W. R. Thompson, the conductor on this train, and Moon had been put under his charge and orders, and received orders only through him. Moon was an experienced, able bodied railroad hand, in the 23d year of his age, and number one in all respects, and was made one of the rear brakemen by the conductor. This train was in use hauling cross-ties from points of delivery between the Falls of Joshua and Scottsville, and also in hauling dirt for repairing the track from time to time. Various parties of section hands were at work upon the road on the 25th of July, and all signalled the train with flags as it approached them, save one. This party, under the section-master, Herndon, was at work a few miles below Gladstone station, upon a curve in the road, and had the outside rails up, bringing them to a higher level than had existed before, and had what is called a " run out," with one end corresponding in level with the new and raised level above, while the other end had the same level as the old track below. Under this " run out" the dirt had not been filled in and rammed firm, but it had only been tamped--that is, gravel had been thrown under the end of the tie on which the joints of the rail rested at the upper end of the " run out," and also under the ties at other places along the " run out." With the track in this condition, on a curve, the foreman, or section-master, Herndon, deliberately chose to take the chances, and gave no signal to the approaching train. The engineer running the train (who had been experienced as an engineer for thirty years) saw the hands of this working party under the section-master (Herndon) at work on the track half a mile ahead, but seeing no flag signal, thought all was right and put on steam, and when he thought he had passed all the hands standing near the track, " gave her steam again to quicken up, and just after saw the tender jumping and knew it was off the track." He shut off the steam and was, with his engine, carried over the banks, & c. The cars were new, the rails and ties were new, and there was no obstruction on the track; yet the tender was thrown off and jerked clear around and upset over the embankment, the engine thrown off and turned over into the canal; one caboose car jumped clear over the engine, and another was broken to pieces, and two flats likewise, while a third flat was reared up upon the wreck with its hind wheels resting on the track; George Moon was thrown off to the right, and caught under the wreck and had all the flesh torn off of one leg from the knee to the foot, and his body so bruised and injured that he died after eight hours of intense suffering. The record shows that the deceased (George Moon) was faithfully performing his duty--was guilty of no negligence--and that there was no apparent or imaginable cause for the accident, other than the running of the train over the newly raised and unequally elevated track around a curve, and accelerating the speed just at the place where the track had been disrupted by the working party, then on the spot, who wholly failed to signal or notify the oncoming train, under an old and experienced engineer, who says that he saw the party full half a mile ahead, but seeing no flag, therefore concluded that all was right.

Upon this state of facts the plaintiff's attorney moved the court to instruct the jury as follows, viz: I. " If the jury believe from the evidence in this case that Conductor W. R. Thompson had general charge and control of the train men, assigning them to such duties as he thought proper, and general control over the coupling and make-up of his train, and that the accident of July 25th, 1881, was caused by any negligence in the management of making up his train, the company is liable therefor, and they must find for the plaintiff."

We think that this instruction should have been given as asked and the court erred in refusing to give it. It was certainly encumbent on the defendant company, upon the facts shown by record, to show, affirmatively and positively, that the accident was not caused by its negligence, or the negligence of any agent for whose conduct the company itself was responsible (Greenleaf v. The Illinois Central Railroad Co., 29 Iowa 14); and the evidence, showing by the defendant's own witnesses, that the train was not made up in...