Atl. Coast Line R. Co v. Newton

• Decision Date: 11 March 1915
• Citation: 87 S.E. 618,118 Va. 222
• Parties: ATLANTIC COAST LINE R. CO. v. NEWTON.
• Court: Virginia Supreme Court

87 S.E. 618

118 Va. 222

ATLANTIC COAST LINE R. CO.

v.NEWTON.

Supreme Court of Appeals of Virginia.

March 11, 1915.

On Rehearing, Jan. 13, 1916.

Error to Circuit Court, Greensville County.

Action by I. B. Newton against the Atlantic Coast Line Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Wm. B. McIlwaine, of Petersburg, and Hamilton & Mann, of Laredo, for plaintiff in error.

Buford, Lewis & Peterson, of Law-renceville, for defendant in error.

KEITH, P. This suit was brought by I. B. Newton, an employe of the Atlantic Coast Line Railroad Company, engaged in its office at Emporia as a telephone and telegraph operator. He was charged with the duty of directing the movement of defendant's trains in the two railway blocks or sections terminating at Emporia station, subject to the authority of the chief dispatcher in the office of the defendant at Richmond. This action is brought under the provisions of the act of Congress known as the federal Employers' Liability Act. Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665). The defendant was engaging in interstate commerce. The service being rendered by the plaintiff was in connection with the operation of a passenger train plying between Richmond, Va., and Rocky Mount, N. C. The application of the act is undisputed, and the questions before the court, as stated by counsel for defendant in error in his brief, are: (1) Whether the defendant was guilty of the negligence charged; and (2) whether the physical condition of the plaintiff resulted in whole or in part from that negligence.

The declaration contains but one count, which sets out in much detail the business in which the defendant company was engaged, the duties imposed upon defendant in error by reason of the employment as an operator, the various instrumentalities which he was required to operate, the duty which the defendant company owed to him, and the negligent breach of that duty which constitutes the basis of his action. The following summary of the declaration will, we think, be sufficient to enable us to deal intelligently with the questions submitted to our consideration:

At Emporia, a station on the line of the defendant railway company in Virginia, there was a certain telephone instrument attached to and connected with the telephone lines, and used for the purpose of transmitting messages, orders, and signals with respect to the movement of trains. Connected with the telephone instrument and lines were five certain devices, knownand designated as lightning arresters, installed by the defendant, and which, when properly constructed, and maintained in a proper state of efficiency and a proper connection with the earth, were competent to protect the person engaged in using said telephone instrument. It was the duty of the defendant to provide a reasonably safe place at Emporia in which the plaintiff was to perform his duties, and to use reasonable diligence to guard and protect the plaintiff in his capacity as telephone and telegraph operator from dangers ensuing to him from the presence and effect of excessive and dangerous currents of electricity finding access at any time from any source to the telephone instrument as might, in the ordinary course of events or in the course of nature, be expected under the circumstances.

That sufficiently describes the occupation of the plaintiff and the duty which was owing to him, by the railroad company. The declaration then proceeds to state the breach of duty for which the plaintiff claims the right to recover as follows: That the defendant, not regarding its duty in that behalf, carelessly, negligently, and wrongfully wholly failed and omitted to perform the same, and at the time of and for a long space of time before inflicting the injury upon the plaintiff, through its agents, servants, superintendents, and inspectors, then and there engaged in another department of labor, other than that in which the plaintiff was then and there engaged, caused, suffered, and permitted certain of the said devices, commonly known and designated as "lightning arresters, " attached to a certain wire or wires connecting the certain telephone instruments which the said plaintiff was then and there, in the performance of his duty as telephone and telegraph operator, obliged to use, with certain of the said telephone lines entering the said station, whereby the station last aforesaid communicated with another or others of said stations, to be and remain and continue for a long space of time in a defective and improper condition, improperly constructed and equipped in a state of inefficiency, by reason of the absence of certain pieces or parts of carbon and certain pieces of mica, essential to the efficiency of said lightning arresters, and destitute of a proper and adequate connection by a sufficient wire or wires with the earth or ground, and particularly caused, suffered, and permitted a certain one of said lightning arresters, then and there attached to a certain wire or wires connecting the said certain telephone instrument which said plaintiff then and there, in the performance of his duty as aforesaid, was engaged in using, with a certain telephone line or telephone lines entering the said station, whereby the said station communicated with another or others of said station, to be, remain, and continue for a long space of time in a de fective and improper condition, improperly constituted and equipped, by reason of the absence of certain points or pieces of carbon, and certain pieces of mica, essential to the efficiency of said lightning arresters, and destitute of a proper and adequate connection by a sufficient wire or wires with the earth or ground, of all which said premises the said defendant then and there had notice, or could, by the exercise of ordinary care in the premises, have had notice, and by the exercise of ordinary care could have prevented the injuries which the plaintiff suffered.

Upon a plea of not guilty to this declaration the parties went to trial, and a great mass of evidence was introduced before the jury, which rendered a verdict for the plaintiff for $10,000, and the case is before us upon exceptions taken during the progress of the trial.

The errors assigned by the railroad company before this court are that the verdict was contrary to the law and the evidence; that the court erred to its prejudice in refusing to give to the jury certain instructions offered by it, and in giving certain instructions offered by the plaintiff; and because the damages awarded were excessive. We shall first consider the assignment of error relating to the giving and. refusing of instructions.

Defendant offered two instructions, Nos. 1 and 2, which were refused, and are as follows:

(1) "The court instructs the jury that if they believe from the evidence that the injuries received by the plaintiff, I. B. Newton, were not caused by a violent concussion produced in or at the telephone instrument itself, or by a current of electricity passing through the said telephone instrument, they must find a verdict for the defendant, although they may further believe from the evidence that the said Newton was injured by a discharge of lightning, which reached him through some other of the wires or appliances of the defendant."

(2) "The court instructs the jury that they cannot find a verdict for the plaintiff unless they believe from the evidence that a current of electricity, at the time of the accident, ruptured and exploded one or more of the five lightning arresters mentioned in the declaration, that is to say, the five 60-A lightning arresters, and then passed into the telephone instrument which was in use by the said plaintiff, and resounded and detonated in the said telephone instrument with force and energy and produced a concussion, by means of which premises the said plaintiff was injured."

The plaintiff offered instruction No. 5, to the giving of which the...