Am. Locomotive Co v. Whitlock

• Decision Date: 11 March 1909
• Citation: 109 Va. 288,63 S.E. 991
• Parties: AMERICAN LOCOMOTIVE CO. et al. v. WHITLOCK.
• Court: Virginia Supreme Court

63 S.E. 991

109 Va. 288

AMERICAN LOCOMOTIVE CO. et al.

v.WHITLOCK.

Supreme Court of Appeals of Virginia.

March 11, 1909.

1. Master and Servant (§ 155^*)—Injuries to Servant—Warning.

If the danger to which a servant is exposed is open and obvious, it is one of the risks incident to the employment, and it is not the duty of the master to warn him thereof.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 310; Dec. Dig. § 155.*]

2. Master and Servant (§ 280*) — Injury to Servant—Assumption of Risk—Sufficiency of Evidence.

Evidence held to show that the danger to which plaintiff was exposed was open and obvious, and that plaintiff knew, or by the exercise of ordinary care could have known, thereof.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 983; Dec. Dig. § 280.*]

3. Trial (§ 296*)—Instructions—Curing Error.

The error of an instruction, complete in itself, is not cured by a subsequent instruction on the same subject, stating the law correctly.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 713; Dec. Dig. § 296.*]

4. Witnesses (§ 390*)—Purpose of Testimony—Impeachment.

Testimony of a witness who knows nothing about the custom sought to be shown, except what he had heard other witnesses say, is ad missible for the purpose of impeaching the credibility of such witnesses.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1247; Dec. Dig. § 390.*]

5. Master and Servant (§ 278*)—Injuries to Servant—Warning of Danger—Custom—Sufficiency of Evidence.

Evidence in an action for injuries to a servant held insufficient to show the existence of a custom by defendant to wajn servants of danger when engaged in such work as plaintiff was doing when injured.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 972; Dec. Dig. § 278.*]

6. Trial (§ 252*)—Instructions—Sufficiency of Evidence to Support.

Since the abolition of the scintilla doctrine, an instruction ought not to be given when the evidence on which it is based is insufficient to sustain a verdict.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]

7. Trial (§ 260*)—Refusing Instructions.

The refusal of a requested instruction is not error, where the substance thereof is fully covered by instructions given.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 051; Dec. Dig. § 260.*]

Appeal from Circuit Court of City of Richmond.

Action by Hilary L. Whitlock against the American Locomotive Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

McGuire, Riely & Bryan, for appellants.

Meredith & Cocke, for appellee.

BUCHANAN, J. This is an action to recover damages for personal injuries caused, as alleged, by the negligence of the defendants (plaintiffs in error) in whose service the plaintiff was employed as a carpenter.

The defendants operate a manufacturing establishment in the county of Henrico, consisting of a number of large shops. One of them, known as the "shovel shop, " and in which the plaintiff was injured, had been erected a short time before the accident, but had not been entirely completed. This shop was a structure 340 feet in length and 100 feet in width, divided into three aisles running the entire length of the building, and in each aisle there was operated a crane, weighing some 30, 000 pounds, and running on tracks at an elevation of about 20 feet. The tracks are laid on large iron girders, supported by pillars about 20 feet apart, running from the floor up, and extending outside of and beyond the girders towards the roof of the shop. The bridge of the crane is 47 feet in length, extending from one track to the other, and it rests and runs upon iron wheels about 2 feet in diameter. Suspended from the body of the crane, between the tracks, is a cage 6 or 8 feet in diameter, in which stands the man who operates the crane. Between the parallel beams composing the crane bridge or frame runs a trolley, to which is attached a chain and hook. Bymoving this trolley from one side of the bridge to the other, the weights attached to the hook are moved from one side of the aisle to the other side. The crane is moved up and down the track by electric power.

At the time of the accident the line shafting to be used in the building had not been completed, though the crane had been in operation for some weeks in placing machinery in the building and in packing locomotives for shipment The line shafting was supported by hangers, which were attached to wooden bridge trees. The bridge trees extended from the girders which supported the tracks of the cranes on the east and west sides of the shop to I-beams running parallel with the girders; the distance from the center of the track to the center of the I-beam being between 5 and 6 feet. Between each of the pillars upon which the girders rested and the I-beam there was framing, consisting of iron beams, strut, wooden hangers, and bridge trees.

On the morning the plaintiff was injured he had been ordered by the foreman of the carpenters to go with another employe and assist in putting up hangers, which were the wooden parts of the bridging that ran along outside of the eastern girder and rail of the track of the western crane. Whilst the plaintiff and the carpenter whom he was directed to assist were engaged in that work, he was struck or caught by the western crane, which was being operated that morning, and dragged some 15 feet, when, to save himself from being carried against one of the pillars south of him, he caught hold of a piece of framing with his left hand and seized the track with his right hand, involuntarily, as it seems, and the crane wheels passed over a part of that hand, cutting off three fingers.

No warning had been given the operator of the crane that the plaintiff and his associate were at work near, but on the outside of, the track of the crane, nor to the plaintiff that the crane was approaching. The failure on the part of the defendants to give such warning, or to keep a lookout, it is insisted by the plaintiff, was negligence, because of the danger of the situation in which he was working and the existence of a custom that such warning should be given.

The defendants, on the other hand, deny that there was such a custom, and claim that it was not their duty to warn the plaintiff of the movement of the crane, since any danger to him from that source was open and obvious.

Upon this question the court gave instructions Nos. 1 and 2, asked for by the plaintiff. The giving of each is assigned as error.

Instruction No. 1 Is as follows: "The jury are instructed that it was the duty of the defendants to exercise reasonable and ordinary care to furnish Hilary L. Whitlock a reasonably safe place in which to do the work required of him, and to protect him when exercising on his part reasonable and ordinary care under the then existing conditions and surroundings against an accident or injury from the running or operating of the car or traveler of the crane, as could have been reasonably foreseen; and to that end, If the place in which he was required to be in the performance of his work, or in going to or from the same, would in reasonable probability become dangerous by reason of any perils arising from the running or operating said traveler, it was the duty of the defendant to use some reasonable and proper means commensurate with such danger by giving him notice of the approach of said traveler or otherwise, to give him reasonable protection when exercising on his part reasonable and ordinary care, under the then existing circumstances, from being struck by the said traveler. If the jury believe from the evidence that the defendants failed to perform such duty, and that the said Hilary L. Whitlock was injured as alleged in the declaration by reason of such failure to perform said duty, then they must find for the plaintiff, unless they believe that the said H. L. Whitlock failed to exercise reasonable and ordinary...