Atl. Coast Line R. Co v. Caple's Adm'x
| Decision Date | 03 November 1910 |
| Citation | 66 S.E. 855,110 Va. 514 |
| Parties | ATLANTIC COAST LINE R. CO. v. CAPLE'S ADM'X. |
| Court | Virginia Supreme Court |
The modification of a requested instruction in a servant's injury action by inserting the quoted words that, if decedent was injured as a mere accident, "not caused in any manner by defendant's fault or negligence, " the jury must find for defendant, though they may believe that decedent was also free from fault, was calculated to confuse and mislead the jury, and the instruction should have been given without such modification.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1146; Dec. Dig. § 291.*]
Where the employer's theory in a servant's death action, that the injuries were caused by an accident, was supported by sufficient testimony, a proper instruction should have been submitted on that theory.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1136; Dec. Dig. § 291.*]
In an action against a railroad company for a switchman's death, defendant requested an instruction that, notwithstanding certain acts of negligence alleged by plaintiff, if the jury further believe that decedent's death was caused by his missing his hold "by his own fault or misfortune, and not because of defendant's fault or negligence, " while ascending the car ladder, thereby falling in front of the car, and that ascending such ladders was a part of his duty, and he had sufficient experience to know how to perform it, the jury must find for defendant, and another instruction requested by defendant was that if the jury believed it as probable that the accident happened by decedent falling from the car, as that he was jerked from the engine as alleged, they should find for defendant. The theory of the declaration was that decedent was on the back of the engine when injured, drawing the coupling pin, and that the engineer negligently, without signal, suddenly increased speed and jerked decedent upon the track in front of the cars following the engine. Held, that the modification of the first instruction by inserting the quoted words permitted the jury to find for plaintiff whether the negligence causing the injury was alleged in the declaration or not; the purpose of both instructions being to limit plaintiff's proof to the allegations of the declaration, and they should have been given as re-quested.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1136-1139; Dec. Dig. § 291.*]
The instruction as modified ignored defendant's theory that decedent fell from the car ladder by missing his hold after the engine had been uncoupled.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]
Plaintiff cannot allege one set of facts and recover upon proof of another set of facts.
[Ed. Note.—For other cases, see Pleading, Cent Dig. § 1300; Dec. Dig. § 387.*]
An instruction, in an action for a servant's death, which authorized recovery if defendant was negligent and such negligence proximately caused his death, but which omitted the question of contributory negligence, which was pleaded, and which the evidence tended to support, was erroneous.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]
Error in an instruction in authorizing a recovery if the deceased servant's death was proximately caused by defendant's negligence without mentioning contributory negligence, which was an issue, was not cured by an instruction given for defendant on contributory negligence, as the instructions were conflicting so that it could not be determined which controlled the verdict.
[Ed. Note.—For other cases, see Trial, Cent. Dig. § 709; Dec. Dig. § 296.*]
Instructions, in a servant's injury action, which state the law as to the employer's duties, should not, as a rule, direct a verdict for the employ^ unless they also state his duty to exercise reasonable care.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1180; Dec. Dig. § 296.*]
Where all of the facts relating to the question in controversy were fully before the jury and easily understood, expert opinion on the question was not competent; the jury being as capable of drawing an inference from the facts as the witness.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2310; Dec. Dig. § 507.*]
As a rule witnesses can only testify to facts and cannot give their opinions.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2149; Dec. Dig. § 471.*]
Error from Corporation Court of Manchester.
Action by Caple's administratrix against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.
Edwin P. Cox and Wm. B. McIlwaine, for plaintiff in error.
O'Flaherty & Fulton and Geo. J. Hooper, for defendant in error.
In October, 1906, Norman Oaple died from injuries received by him a few hours before his death, while in the employ of the plaintiff in error as one of a switching crew in its Manchester yards. The alleged negligence of the defendant company in causing his death is the ground of this action brought by his administratrix for damages.
The record shows that the deceased* lost his life during the operation of making what is known as a "flying switch, " and while he was engaged in uncoupling the engine from the cars. The theory of the plaintiff, as shown by her declaration, was that the deceased was on the rear step of the engine in a stooping position, drawing out the coupling pin, and that without waiting for a signal to do so from the deceased, which was his alleged duty, the engineer negligently and suddenly increased the speed of the engine and threw or jerked the plaintiff's intestate upon the tracks, immediately in front of the moving cars, which were following the engine, thereby causing his death.
The theory of the defendant was that the deceased was standing on the ladder of the car and lost his hold and fell, as the result of a pure accident, for which the defendant was not responsible; and that, if this was not so, the deceased was guilty of such contributory negligence as to preclude a recovery by his administratrix.
There was a verdict and judgment for the plaintiff, which this writ of error brings under review.
We find no error in the action of the circuit court in overruling the demurrer to the plaintiff's declaration.
We will consider first the assignments of error which challenge the action of the circuit court in refusing and modifying certain instructions asked for by the defendant.
Instruction No. 13, as asked for, was as follows: "The court instructs the jury that, if they should believe from the evidence that Norman Caple was injured as a mere accident, they must find for the defendant, and this although they may believe Norman Caple was also free from fault."
The court modified this instruction so as to make it read as follows: "The court instructs the jury that if they should believe from the evidence that Norman Caple was injured as a mere accident, not caused in any manner by defendant's fault or negligence, they must find for the defendant, and this although they may believe Norman Oaple was also free from fault."
The words in italics show the modification, which was well calculated to confuse and mislead the jury, if not to defeat the purpose of the instruction. The instruction should have been given as asked. The view of the defendant that the death of the deceased was the result of a mere accident was supported by ample testimony to entitle it to a proper instruction submitting that theory of the case to the jury. Traction Co. v. Martin, 102 Va. 209, 212, 45 S. E. 886.
The eighteenth instruction, as offered by the defendant, set forth certain acts of negligence charged by the plaintiff against the defendant company, and concluded with the statement: "Yet, notwithstanding they may so believe, the jury must find a verdict for the defendant company, if they shall further believe from the evidence that the death of the said Norman Caple was caused by his missing his hold while ascending the ladder of the car that was being switched, thereby falling on the track in front of the same, and that ascending such ladders on moving cars was a part of his duty, and that he had sufficient experience to know how to perform his duty."
This instruction was modified by inserting between the word "hold" and the word "while" the words "by his own fault or misfortune and not because of defendant's fault or negligence."
The twelfth instruction offered by the defendant told the jury that if they believed it to be...
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