Bly v. Southern Ry. Co

• Citation: 183 Va. 162,31 S.E.2d 564
• Parties: BLY. v. SOUTHERN RY. CO.
• Decision Date: 09 October 1944
• Court: Virginia Supreme Court

31 S.E.2d 564

183 Va. 162

BLY.

v.SOUTHERN RY. CO.

Supreme Court of Appeals of Virginia.

Oct. 9, 1944.

Rehearing Granted Nov. 22, 1944.

Error to Circuit Court, Shenandoah County; B. P. Harrison, Judge.

Action by Lucy M. Bly, administratrix of the estate of Douglas C. Bly, deceased, against the Southern Railway Company, to recover for the wrongful death of decedent. From a judgment for defendant notwithstanding a jury verdict for plaintiff, plaintiff brings error.

Reversed and remanded.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

N. W. Borden, of Strasburg, and F. S. Tavenner and F. S. Tavenner, Jr., both of Woodstock, for plaintiff in error.

Thomas B. Gay, of Richmond, and Elliott Marshall, of Front Royal, for defendant in error.

GREGORY, Justice.

Lucy M. Bly, administratrix of Douglas C. Bly, deceased, instituted an action at law under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., against the Southern Railway Company for the wrongful death of the decedent. After the conclusion of the evidence, upon motion of counsel for the defendant, the court struck out all of the plaintiff's evidence. In spite of this, the jury returned a verdict for $3,000 in favor of the plaintiff, which the court promptly set aside.

There were several allegations of negligence in the notice of motion, but the one which we think is material is the allegation that the railway company failed to maintain a safe place for the decedent to perform his duties.

There is no conflict in the evidence. Douglas C. Bly was thirty-six years old at the time of his death, which occurred on November 17, 1941. He was a part-time employee of the Southern Railway Company. He also owned and operated an Esso filling station in Strasburg, Virginia. He was unmarried. For some time he had worked as a brakeman on a passenger train which carried three passenger cars. The railway company operates a line from Harrisonburg, Virginia, to Alexandria, some 140 miles in length. Bly was called to serve as a flagman on a freight train. This freight train, in going from Harrisonburg to Alexandria, was known as No. 74. Prior to his death, he had made one or two trips on this train as a flagman. He had previously worked on local freight trains as a front brakeman.

On the day of his death Bly had been assigned to work as the rear flagman on train No. 74, and he alone occupied the caboose, where his duties, under the rules of the company, required him to be. His train consisted of 22 cars, besides the tender, engine and caboose, and at Toms Brook, a station and small town, a switching operation took place whereby one car of stone was taken into the train. The locomotive of the train was stopped just north of Toms Brook station, with the rear end, consisting of two or three cars and the caboose, resting on the south end of the Toms Brook bridge. Bly fell to the ground under the bridge and met his death. The caboose of the train was approximately above the supporting pier where the body of the decedent was found. His signal lamp was found on the bridge, approximately above the point where the body was found, which is something like 70 feet from the south abutment of the bridge.

In stopping trains at Toms Brook, similar to this one, where there are 19 cars or more, if the locomotive is stopped at or near the station, the end of the train or the last two or three cars and the caboose will rest on the bridge, and where switching op-erations are conducted similar to the one above referred to, a mandatory rule of the company is that the flagman must leave the caboose and go back a sufficient distance to flag other trains that may be approaching from the rear.

The bridge is 505 feet long, and from the exhibit filed, it appears to be 63¹/₂ feet at the highest point. Photographs of the bridge and the surroundings were introduced. At the point where the decedent met his death it is about 40 feet high. The bridge at the time was 10 feet wide, from end to end of the cross-ties. There was a deck guardrail of 6x8 or 8x8 on both sides of the bridge extending lengthwise and flush with the ends of the cross-ties, placed there to prevent derailed cars from leaving the bridge or "bunching" the ties. The deck of the bridge was uncovered and the ties were 5 to 5¹/₂ inches apart. There was no walkway on either side of the bridge which would have provided a place for trainmen to work when necessary. Freight cars in trains crossing the bridge are approximately from 10 feet 2 inches to 10 feet 6 inches in width. The caboose in which the decedent was riding, from the lower step on the rear on one side to the same step on the other was 10 feet 5 inches, the step extending beyond the width of the bridge for some 2 or 3 inches on each side. When the caboose is stopped on the bridge, a flagman's only means of leaving the cab is to go down the steps. His movement in doing this is described by an expert witness in this language: "He would back down the steps, hold to the handrail on the other side of the steps, and when he gets to the bottom step would put his right hand over on the left hand rail and would swing around to the back of the cab and step on the deck of ties."

The station is some 400 feet from the eastern end of the bridge, and almost immediately at that end there is a switch from which a siding runs to the east paralleling the main line for some 1200 feet, upon which the car loaded with stone was standing and ready to be made a part of the train by the switching operation. There were other cars on the siding.

The body of the decedent was found at the base of one of the steel piers supporting the bridge. His watch, with the crystal broken, and his chain, were found on the stub of a cut-off bush. Pieces of the broken watch crystal were found on the pedestal of the steel pier. A cigarette was also discovered near the body, with dis colored or charred tip. Approximately above the body on the bridge was the decedent's signal lamp. He met his death on the night of November 17, 1941, at approximately 8:34 P. M. His watch stopped at 8:34, though one witness testified that the watch stopped at 8:38 P. M. The train arrived at Toms Brook at from 8:30 to 8:35. One witness stated that it arrived at around 8:30. It remained at the station 20 minutes, in shifting and taking on the car of stone. It thus appears that Bly met his death a very short time after the caboose was brought to rest on the bridge. When the train resumed its journey, no "proceed" signal was given by him, because at that time he had already fallen.

The train proceeded, and Bly's absence was not discovered until the train had reached Strasburg Junction. Later a searching party, composed of the crew, was sent out to find him, and his body was discovered about midnight under the bridge.

At the trial the defendant placed only one witness on the stand and he testified as an expert bridge engineer. He had been employed in that capacity for the Norfolk and Western Railway Company, and was a member of the American Railway Engineers Association. He testified that he had examined the Toms Brook bridge; that it was constructed in accordance with the general custom and usage of railway companies generally throughout the United States, similarly situated, where switching operations might require that the caboose be left on the bridge at night; and that good practice and usage among railroads did not require that walkways or lights be provided for such bridges.

The rule of the defendant company previously referred to, requiring a flagman to protect the rear of his train, is in this language:

"When a train stops under circumstances in which it may be overtaken by another train, the flagman must go back immediately with flagman's signals a sufficient distance to insure full protection (not less than one-half mile, and further on descending grades or when the view is obscured), placing two torpedoes, one rail length apart, on the rail on engineman's side of track, and when necessary, in addition, to display a lighted fusee. * * *"

And another rule reads thus:

"It is their duty to protect the rear of their trains in accordance with the rules, and they must allow nothing to interferewith the prompt and efficient discharge of this duty. They must obey the signal from the engineman prescribed by the rules, but must not wait for such signal or for orders from the conductor when their trains need protection."

And another rule is:

"They must not allow any other duties to interfere with the protection of their trains, and must require the flagman to perform his duty in accordance with the rules."

The question presented is whether or not a jury could have found that the defendant railway company should have provided a walkway on the bridge for the flagman to use in connection with getting off of the caboose at night and going back to flag advancing trains, and if so, whether or not its failure in this respect was the proximate cause of the death of the deceased.

This case being one under the Federal Employers' Liability Act, it is controlled by the 1939 amendment, 53 Stat. 1404, c. 685, 45 U.S.C.A. § 54, and the late decisions of the Supreme Court. See Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967, and annotation at page 978; Lilly v. Grand Trunk Western R. Co., 1943, 317 U.S. 612, 63 S.Ct. 33, 87 L.Ed. 497; Tennant v. Peoria & Pekin Union R. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. ----; Owens v. Union Pacific R. Co., 1943, 319 U.S. 715, 63 S.Ct. 1271, 87 L.Ed. 1683.

Assumption of risk was abolished by the 1939 amendment where injury or death results in whole or in part from the negligence of the carrier, and contributory negligence is not a defense in cases of this kind. It only diminishes the amount of damages (45 U.S.C.A. § 53, ch. 2). Those defenses were not asserted in this case, and we are not concerned with them.

Before a recovery of...