Chesapeake & O. R. Co v. Hafner.1

• Decision Date: 22 March 1894
• Citation: 90 Va. 621,19 S.E. 166
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. R. CO. v. HAFNER.1

19 S.E. 166

90 Va. 621

CHESAPEAKE & O. R. CO.

v.HAFNER.¹

Supreme Court of Appeals of Virginia.

March 22, 1894.

Injury to Railroad Brakeman—Low Bridge.

There can be no recovery for the death of a brakeman through contact with a bridge which, as he knew, was dangerously low, and could be avoided only by stooping, since, in such case, his failure to stoop was negligence, which was the proximate cause of the accident.

Error to circuit court of James City and city of Williamsburg.

Action by E. Hafner, administrator, against the Chesapeake & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

H. T. Wickham, W. J. Robertson, Henry Taylor, and A. S. Segar, for plaintiff In error.

Edmund Waddill, Henley & Peachy, and A. C. Peachy, for defendant in error.

LACY, J. This is a writ of error to a judgment of the circuit court of the city of Williamsburg and county of James City. The case is as follows: The action was trespass on the case by the administrator of Charles M. Hafner, a deceased brakeman, in the employment of the defendant company, for the negligent killing of his intestate, on the 29th day of October, 1890, by collision with an overhead bridge in the city of Williamsburg, while the train on which he was serving as brakernan was passing under said overhead bridge. The jury rendered a verdict for the plaintiff in the sum of $10,000 damages, upon which the trial court rendered a judgment in accordance with the same; whereupon there was a writ of error awarded by this court, upon the petition of the plaintiff in error.

The evidence shows that the deceased had been employed by the R. & A. R. R. as brake-man four months before he applied for employment with the plaintiff in error company. Upon application to the plaintiff in error company for employment, he was given a free pass over the road from Charlottesville to Newport News, and required to inform himself of his duties and the character of the road. He was a man of full age, with no defect in his eyesight or hearing. He frequently passed under this bridge by day and by night, safely in the discharge of his duty, without injury. On the occasion of the accident which caused his death, he was struck on the head, as is stated by a witness who stood on the bridge and says he heard the blow, by the sill or stringer of the bridge on the west side of the bridge, the train going west at the time of the accident; so that he had passed in safety under three sills of the four supporting the bridge. He stooped or lowered his head under these, and raised it just before he got from under it. The character of the injury received from this collision with this sill was never ascertained, because, descending by the stepladder, he fell off the car, and across the track, and his head was cut in twain by the wheels of the car, and his body otherwise badly mutilated. The bridge is shown to have been a dangerous one, being only 28 1/2 Inches above the car, which dangerous character was known to the company, and was also known to the said brakernan. While dangerous in character, its danger could, however, be avoided by stooping low enough in passing under it, as is shown by the number of times he passed under it, and the number of times others pass and repass, without Injury. The train in question was halting at the station to take the siding, to allow a meeting train, presently due, to have the main track. It Is alleged that there was a call for brakes here as the station was reached. The evidence is conflicting on this point, it being otherwise testified to that the long whistle sounded was simply a blow for the station; but we must consider this case, as other like cases upon a demurrer to the evidence, under the well-known rule of this court prescribed by statute. It was also insisted upon, in its testimony by the plaintiff in error, that there was no collision with the bridge, but that the deceased slipped in descending from the car, as the train was coming to a halt, and was killed by being run over by the train; but here, again, the rule of...