Adm&r v. Norfolk & W. R. Co

• Decision Date: 12 February 1891
• Court: Virginia Supreme Court
• Parties: Bibb's Adm'r. v. Norfolk & W. R. Co.

14 S.E. 163

87 Va. 711

Bibb's Adm'r.

v.Norfolk & W. R. Co.

Supreme Court of Appeals of Virginia.

Feb. 12, 1891.

NegliGencb of Contractors—Injury to Employe—Servant.

1. An employe of an experienced bridge builder, to whom a railroad company had given a contract to replace an old bridge with a new one, the work to be performed so as not to interfere with the running of trains, was killed by the falling of the bridge while a train was passing over it at a speed of only three miles an hour. Plans and everything hut certain material were furnished by the contractor, and he was to receive a gross sum. The engineer of the road was to have the right to criticise the method of erection and workmanship, but not to direct the methods of the contractor in the erection. By the contract no trains were to pass over the bridge during the progress of the renovation until the signal should be given by the contractor's foreman. This had been given by him on the occasion of the accident, which was caused by the fact that certain braces had not been put in position where the old work had been cut away. Held, that the railroad company was not liable, the accident having been occasioned by the negligence of the contractor's servant.

2. The fact that the railroad company reserved the right to run its trains over the bridge during the time of its renovation does not destroy the independency of the contractor's employment.

3. The mere fact that the right of inspection was reserved to the railroad company does not change the relation to it of the contractor from that of an independent contractor to that of an employe.

4. Deceased having been neither a passenger nor employe of the railroad company, the principles obliging a railroad to see that its track is safe cannot be invoked in an action by his administrator.

5. The question whether the bridge was, in any particular stage of its construction, safe for the passage of trains, being in the nature of things one for the contractor, who had worked out the plans, or for his foreman, it cannot be held that, because the company's engineer was on the bridge just before boarding the train which broke through, its unsafe condition must have been obvious to him, and that the company thereby had notice.

Action by J. A. Page, administrator of S. S. Bibb, deceased, against the Norfolk & Western Railroad Company for the death of intestate, alleged to have been caused by defendant's negligence. Judgment for defendant, and plaintiff bring error. Affirmed.

The other facts fully appear in the following statement by Richardson, J.:

Error to judgment of corporation courtof Roanoke city, rendered March 10, 1888, in an action on the case brought in said court in November, 1887, by J. A. Page, administrator of S. S. Bibb, deceased, against the Norfolk & Western Railroad Company, to recover damages for the alleged killing of the plaintiff's intestate by the carelessness of the defendant company in running one of its trains in and upon a certain bridge over Big Otter river in the county of Bedford, and on the line of said railway, and then in course of construction by one Fred H. Smith, who had contracted with said company to erect same, the plaintiff's intestate being at the time in the employ of said contractor, and engaged at work in and upon said bridge. The declaration contains three counts, the first of which, as originally drawn, was. on demurrer, held to be defective, and thereupon the plaintiff substituted a new first count. This count sets forth, in substance, that "the said defendant undertook to rebuild, replace, and repair a certain bridge, the same being a part and parcel of the line of road aforesaid across Big Otter river, in the county of Bedford in said state, and thereupon made a contract with one Fred H. Smith for the erection of said bridge, by the terms of which contract it was agreed, amongst other things, on the part of the said defendant, that said defendant would furnish suitable and proper materials for the erection of said bridge, and that it would use due and proper care in the running of its trains and engines in and upon aid bridge; and that said Smith, on his part, agreed, amongst other things, to erect and place said bridge across said stream. " This count then proceeds to set forth that the plaintiff's intestate was employed by Smith to work on the bridge, and charges that the defendant company did not furnish suitable and proper materials for said bridge, and did not use due and proper care in running its engines and trains upon said bridge, "but, on the contrary, furnished improper and defective

materials, and on the—day of March,

1887, while said Bibb was so employed about said work, caused its train to run upon said bridge, so that the same was broken down and fell in and upon said Bibb, "etc. This count, thus substituted for the original first count, was also demurred to, but the demurrer was overruled. The second count in the declaration differs from the first only in this: that it confines the negligence and wrong charged to the careless manner in which the defendant company caused its engine and train to be propelled in and upon the bridge. The third count charges that the wrong and negligence of the defendant company consisted in the act of running the train upon said bridge when it was in an incomplete and dangerous condition, and when it was not properly and sufficiently supported with timbers, braces, and trestles. To this declaration the defendant pleaded "not guilty, " and upon the issue joined upon that plea the case was tried. Pending the trial, the plaintiff took several bills of exceptions to rulings of the court touching the certain instructions asked for by him. The jury returned a verdict for the defendant, and thereupon the plaintiff moved the court to set aside the verdict as being contrary to the law and the evidence, and to grant him a new trial; but the court overruled the motion, and entered judgment according to the verdict of the jury, and to this action of the court the plaintiff also excepted, and in this bill of exceptions the court certifies not the evidence, but the facts proved; and the case is here upon a writ of error to said judgment allowed by one of the judges of this court.

Penn & Cocke, for plaintiff in error.

T.J. Kirkpatrick and S. Griffin, for defendant in error.

Richardson, J., (after stating the facts.) This case, which was pending at the place of session of this court at Wytheville, was remove.l therefrom to its place of session in Richmond, and was, upon full argument, heard by this court at the November term thereof, 1890, when the judgment of the court below was affirmed by an evenly divided court of four judges. Upon the application of the plaintiff in error a rehearing was granted, and the case was again heard by this court at its November term, 1890, at Richmond, all the judge being present. The plaintiff's case, as urged before the court below, is fairly presented iu his three bills of exceptions taken pending the trial to certain rulings of that court. The real case at large is presented in the plaintiff's bill of exceptions taken to the action of the court overruling his motion to set aside the verdict of the jury and grant a new trial, and in which the court certifies the facts proved. This exception is, in the record, entitled "Plaintiff's bill of exceptions No.1, " when, in the natural and logical order of things, it should have been designated as Iris fourth and last. But this irregularity is not material, as the exception contains the court's certificate of the facts proved, upon which, in the views taken of the case, the decision must mainly, if not entirely, turn.

The substantial and material facts, certified by the court as proved, are these: The Norfolk & Western Railroad Company, during the fall and winter of 1SSC-87, contracted with Fred H. Smith for the erection of an iron bridge over Big Otter river, in Bedford county, Va., and in the line of said company's railway. Smith was a professional and practical bridge builder, had large experience in erecting such structures, and as sole contractor, and also as co-contractor with the Edge-more Iron Company, of Wilmington, Del., had erected several important bridges for this railroad company, and. among them, the high bridge across Appomattox river, which was built by said Edgemore Iron Company and said Smith as co-contractors with said railroad company. And subsequently Smith, as sole contractor with said railroad company, erected the Six-Mile bridge across James river, below Lynchburg; the lvyCreek bridge; and the Big Otter bridge, —the one here in question. That the iron taken from the old high bridge was used in the erection of other bridges in the line of said railroad, and, among them, Big Otter bridge; and to adapt the old high bridge iron to that purpose it was cast and welded at the Roanoke Machine Works of the Norfolk & Western Railroad Company, and the iron so prepared, with all other materials for Big Otter bridge, was furnished by said railroad company, and with the material so furnished Smith was to build the big bridge across Big Otter river, in place of the old bridge at that point, the work to be conducted and accomplished in such manner as not to interfere with the running of the company's trains during the erection of the new and the removal of the old bridge. That the contract between the Norfolk & Western Railroad Company and F. H. Smith was partly in writing and partly parol, consisting in the main of correspondence by letters and by telegrams. In making the contract the railroad company was represented by its chief engineer, W. W. Coe; and that, in a conversation between Smith and chief engineer, it was agreed that the stipulations in the contract for the erection of the high bridge should, so far as applicable, continue in force as to the contract for the erection of Big Otter bridge. That under the plans for the erection of Big...