Atl. Coast Line R. Co v. Wheeler

• Decision Date: 18 March 1926
• Citation: 132 S.E. 517
• Parties: ATLANTIC COAST LINE R. CO. v. WHEELER.
• Court: Virginia Supreme Court

132 S.E. 517

ATLANTIC COAST LINE R. CO.

v.WHEELER.

Supreme Court of Appeals of Virginia.

March 18, 1926.

Error to Circuit Court, Chesterfield County.

Action by J. L. Wheeler against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Wm. B. McIlwaine, of Petersburg, Robt. W. Strange, of Richmond, and Mann & Townsend, of Petersburg, for plaintiff in error.

Wm. Earl White and Chas. T. Lassiter, both of Petersburg, for defendant in error.

WEST, J. J. L. Wheeler brought action against the Atlantic Coast Line Railroad Company for injury to his eyes, alleged to be due to lead poisoning caused by the negligence of the company while in its employ as a painter. The jury returned a verdict of $10,000 for the plaintiff, upon which the court entered the judgment now under review.

The parties will be referred to as plaintiff and defendant, with reference to their positions in the trial court.

The principal assignment of error is the action of the court in refusing to set aside the verdict of the jury, because contrary to the evidence and without evidence to support it, and enter a final judgment for the defendant.

The declaration alleges that the defendant was negligent in failing to warn and instruct the plaintiff how to use and apply the paint safely; to furnish him with a safe and suitable place to work; to furnish him with safe and suitable appliances with which to work, and to inspect the appliances, place of work, and conditions under which the work was being done.

The defendant contends that it has been guilty of no negligence, and that the condition of plaintiff's eyes was not caused by lead poisoning.

Under the Code, § 6363, the verdict of the jury and judgment of the trial court cannot be set aside, unless it appears from the evidence that they are plainly wrong or with-out evidence to support the verdict. In determining this question where it "involves the credibility of witnesses whose testimony the jury might reasonably have believed, or the weight to be given to their testimony, or a question of a mere preponderance of the evidence, " the case must be considered as on a demurrer to the evidence by the plaintiff in error. N. & W. Ry. Co. v. Thayer, 119 S. E. 107, 137 Va. 294.

Considered as upon a demurrer to the evidence, the jury could well believe that the evidence proved the following facts, tending to establish the primary negligence of the defendant:

In July, 1922, J. L. Wheeler, the plaintiff, was employed by the defendant in its Pocahontas yards, at Petersburg, Va., as a carpenter. He was then in splendid health, and his eyesight was unimpaired. The regular painters at the Clopton yards, near Richmond, were on a strike, and on August 11, 1922, Wheeler was transferred to the Clop-ton yards, and, against his wishes, put to work as a painter. He informed his boss that he was not a painter, knew nothing about paints, and that he could neither read nor write. He was first ordered to paint cars with a brush. Later Wheeler and Martin, who were the only painters at work at the Clopton yards, were ordered to paint cars with a paint blowgun. The paint was forced from the gun against the car in the form of a fine spray, by air pressure. The paint used in the blowgun contained 38.68 per cent. white lead and 33.16 per cent zinc oxide. The defendant knew it was poisonous when inhaled through the nostrils or mouth, or absorbed through the skin, and had prior to that time purchased face masks and goggles for the protection of the operators of the blowgun. Wheeler had never seen a blowgun or a face mask, and did not know there was danger of being poisoned from the spray. He never saw any person use the face mask or goggles while painting. The defendant failed to warn him of the danger or instruct him to use the face mask or goggles, which it had supplied with the spray machines and hung up in the painthouse. The regular painters who worked at Clopton yards prior to the strike wore the face masks when there was much painting to be done, but this was unknown to the plaintiff. Wheeler and Martin were required many times prior to June, 1923, to paint with the blowgun in the open air when a high wind was blowing. As a result, Wheeler frequently inhaled the spray, and got his face, hands, and clothes thickly covered with specks of paint. In June, 1923, the master mechanic painter from Rocky Mount, N. C, instructed them never to use the paint blowgun when the wind was blowing.

When defendant's primary negligence has been established, plaintiff's right to recover does not depend upon defendant's abil ity to foresee or anticipate that the particular injury might result from such negligence. Under such circumstances, the defendant is liable for the natural or probable consequences of its own act.

In N. & W. Ry. Co. v. Whitehurst, 99 S. E. 569, 125 Va. 263, Judge Burks, speaking for the court, said:

"When once it has been determined that the act is wrongful or negligent, the guilty party is liable for all the consequences which naturally flow therefrom, whether they were reasonably to have been anticipated or not. * * * The precise injury need not have been anticipated. It is enough if the act is such that the party ought to have anticipated that it was liable to result in injury to others. City Gas Co. v. Webb, 84 S. E. 645, 117 Va. 265); Pulaski Gaslight Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189, 1199. 32 L. R. A. (N. S.) 825; Cooley on Torts (Student's Ed.) p. 33; Hill v. Winsor, 118 Mass. 251; 25 Harvard Law Review, 245, 246; 1 Shear. & Red. (5th Ed.) § 28, and cases cited."

It was said by this court in City Gas Co. v. Webb, 84 S. E. 646, 117 Va. 272:

"If the act of omission is of itself negligent and likely to result in injury to others, then the person guilty thereof is liable for the natural consequences which occurred, whether he might have foreseen it or not. In other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did happen."

The court, speaking through Keith, P., in Pocahontas Collieries Co. v. Williams, 54 S. E. 868, 105 Va. 708, says:

"It is the duty of the master to inform an inexperienced servant of the dangers ordinarily incident to the service, and if he fails to do so, and the servant has no opportunity to learn of them, he will not be held to assume risks not obvious to one of his age, experience and judgment."

"The question of whether the servant should have been warned is always for the jury upon the evidence."

In Wagner v. Jayne Chemical Co., 23 A. 772, 147 Pa. 475, 30 Am. St. Rep. 745, the court said:

"An employer is bound to exercise reasonable precaution against injury to his employees while they are in his service and obeying his orders. Not only must he provide suitable implements and means with which to carry on the business which he sets them to do, but he must warn them of all the dangers to which they will be exposed in the course of their employment, except those which the employee may be deemed to have foreseen as necessarily incidental to the employment in which he engages, or which may be open and obvious to a person of his experience and understanding, and except, also, such as the employer cannot be deemed to have foreseen. And the employerwill be presumed to be familiar with the dangers, latent as well as patent, ordinarily accompanymg the business in which he is engaged. Authorities upon these points may be found in great abundance in the notes to sections 185 to 203 of Shearman & Redfield on Negligence."

In this case the plaintiff inhaled poisonous fumes, and was injured thereby. He was not warned of the danger by his employer, and there was testimony that he had no previous knowledge of such danger. It was held that the defendant's negligence and the plaintiff's contributory negligence were questions for the jury, and the judgment for the plaintiff was affirmed.

In B. & O. Ry. Co. v. Branson, 98 A. 225, 128 Md. 678, plaintiff was employed to paint freight cars and locomotives with a paint blowgun, which covered the painter with a fine mist of paint. The plaintiff did not know of the poisonous character of the paint used. Defendant knew of the danger, but failed to provide the plaintiff with a nose guard. Plaintiff's health was injured by the inhaling of paint, and he sued, alleging negligence in defendant's failure to provide safe and suitable appliances with which to perform the work. The court held that the question of defendant's negligence and the extent of plaintiff's injury were questions for the jury, and affirmed the judgment in favor of the plaintiff.

The law as to proximate cause is laid down in 29 Cyc. p. 492, as follows:

"To constitute proximate cause, creating liability for negligence, the injury must have been the natural and probable consequence of the negligent act."

It is not necessary that...