Chesapeake & O. Ry. Co v. Meadows

• Decision Date: 08 June 1916
• Citation: 89 S.E. 244
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. MEADOWS.

89 S.E. 244

(119 Va. 33)

CHESAPEAKE & O. RY. CO.

v.MEADOWS.

Supreme Court of Appeals of Virginia.

June 8, 1916.

Error to Circuit Court of City of Clifton Forge.

Action by J. W. Meadows against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

J. M. Perry, of Staunton, for plaintiff in error.

O. B. Harvey, of Clifton Forge, for defendant in error.

CARDWELL, J. This action was brought by the plaintiff, J. W. Meadows, under the federal Employers' Liability Act, to recover damages for personal injury alleged to have been sustained by him because of the negligence of the defendant, the Chesapeake & Ohio Railway Company.

The defenses interposed to the action were: First, that the defendant was not negligent in any respect as charged in the declaration; second, that the plaintiff was guilty of negligence which contributed to his injury; and, third, that the plaintiff assumed the risk of the injury complained of by him in each of the counts of his declaration.

At the trial of the cause there was a verdict for the plaintiff, which the trial court refused to set aside, and entered judgment thereon, to which judgment this writ of error was awarded the defendant.

The plaintiff was a locomotive fireman of 10 years' experience, employed by the defendant in interstate commerce, and about an hour before sunrise, on September 23, 1914, the day of the accident to him, was a fireman on a very large locomotive, known as a "Mallet, " of peculiar and unusual construction, drawing an east-bound interstate train of freight cars from Hinton, W. Va., Which train, upon arriving at the Clifton Forge, Va., yards, was moving slowly along a "lead'' track towards the yard track, which would be its terminal. The Clifton Forge yards consist of an east yard and a west yard, the west yard being the terminal for all east-bound freight trains and the east yard for all west-bound trains. Plaintiff's train was approaching the west end of the west yard, where the defendant has a signal tower known as "A. N. Cabin, " in which is an operator and signalman. Switches connecting the main line with the yards are operated from this tower by the operator and signalman, and there is also operated from this tower a fixed semaphore signal with moving paddles, known among railway men as a "block" or "block signal, " which signal is located west of the tower at the western limits of the west yard. Under the rules of the defendant, no train can enter the yard until the operator or signalman in the tower has caused the semaphore to show a "white block, " and has thrown the "cross-over" switch from the main line to the yard "lead" track. The yard is connected by telephone with the tower from what is known as a "switch box, " being a small house located in the midst of the yard, and no train is allowed by the signalman in the tower to come into the yard until the yard employes have ascertained that the tracks over which the incoming train must pass has been cleared of all obstructions and are safe for the train crew in the performance of their duties and these facts telephoned to the signalman in the tower, whereupon the signalman in the tower throws the "cross-over" switch and pulls the lever in the tower which gives the "white block" on the semaphore signal; the "white block" meaning, under the rules of the defendant company and by its daily practice, that the yard employes had been over the entire track over which the incoming train must pass to its stopping point, which, in this instance, was the east end of the west yard, and that the track was safe and clear.

When the plaintiff's engine first came in sight of the signal controlling its further movements, the "block" was closed, which meant that the engine must stop when it reached the signal post. Before the engine arrived at the signal post, however, "the block came white, " and therefore the train did not stop at all, but passed the tower, went over the "cross-over" switch from the main line onto the "lead" track of the yard, and under the rules, regulations, and practice of the defendant company neither the engineer nor the fireman on a train entering the yard knew or could know on which of the numerous tracks in the yard they were to go from the "lead" track, but this was entirely under the control of the yard employes. On the fireman's side of the engine and from the left-hand side of the "lead" track various yard tracks, parallel to one another, diverge at a slight angle. On one of these yard tracks, on (be occasion of the accident to plaintiff, stood a freight train of some 60-odd cars, made up to go east, with caboose attached, and at each upper rear corner of the caboose and projecting beyond its side and rear hung a lighted "marker" or signal lamp, showing a green light to each side and a red light to the rear, to indicate the rear of the train. The caboose was quite close to the intersection of the yard and "lead" track, and as plaintiff's engine passed it, and just before it came opposite to the fireman's seat in the cab, plaintiff put his head out of the cab window and was struck and injured by the "marker, " which had been torn loose from its fastening and the light in it put out by a collision with the front of the cab of the engine. Plaintiff's injury was painful, keeping him in bed some days, and resulted in deafness in the right ear and headaches.

The plaintiff struck out the second count of his declaration before the jury was sworn, and the case proceeded on the first count alone, which alleged negligence on the part of the defendant in permitting its caboose to stand too near the "lead" track, over which the plaintiff's engine had to move and was moving at the time he received the injury of which he complains.

The first assignment of error is to the ruling of the court admitting in evidence testimony given by plaintiff's witnesses, Hutchinson and Taylor, with respect to the construction and condition of engine 701, upon which plaintiff was at work when injured; the engine being of the "Mallet" type, of which the defendant had 14 in use at that time and prior thereto.

The rules of the defendant, which were in evidence, show that it was the duty of a fireman on the main line, in coming into the Clifton Forge yards, "as far as practicable, when running, to keep a lookout ahead for signals and obstructions, " and it appeared that on engine 701, which the plaintiff was firing, this duty could only be performed by-projecting his head out of the side window of his cab, because of the construction of the engine. It also appeared in evidence that this rule of the defendant, as construed and acted upon by its firemen, meant that the fireman should keep a lookout, etc., when not engaged in other work, such as firing the engine or doing something that is his duty on the engine—that is, the primary duty of a fireman is not to look out, but to fire the engine. It further appears that on plaintiff's engine there was, as on all engines of the same type, a mechanical stoker, consisting of a stoker engine run by steam and certain pipes and screens running from the engine of the locomotive back to the coal in the tender, and certain feeds and mechanical devices moved by the stoker engine, whereby the coal was brought from the tender into the firebox of the locomotive. The stoker engine was built into and attached to the head of the boiler of the locomotive, and was propelled by steam drawn from the boiler. This was a labor-saving device, by means of which the large quantities of coal required by this mammoth locomotive might be fed to its fires by mechanical means; and there wasevidence proving or tending to prove that the fireman's primary and principal duty was to look after this mechanical stoker, to shut off and stop the running of the stoker and stoker engine when coming into terminals. The plaintiff, it appears, threw out the clutch of the stoker engine just before arriving at the yard limits, which stopped the feeding of coal to the locomotive, but that left the stoker engine running. He then looked out to see the semaphore signal, being required by the rule of the defendant to repeat to the engineer the signal as he saw it, and the engineer to him. He saw the "white block, " and continued to look out for a short distance as he passed into the yard, and then stopped looking and attempted to stop the stoker engine. The throttel valve controlling its running was defective and did not completely shut off the steam, and when closed as far as he could close it the engine continued to turn over slowly, whereupon plaintiff took a broom handle which was on the locomotive and made a brake of it by pressing it against the solid flywheel, which took but a moment or two, and then he got back on his seat by the cab window and projected his head a short distance therefrom in order to perform his duty of looking out, and was immediately struck and injured as above stated. These facts were testified to by the plaintiff, and the testimony given by his witness Hutchinson, objected to by the defendant, is as follows:

"Q. You have heard what Mr. Meadows says about stopping his stoker engine. I wish you would state whether that has been done by you. A. That is about the only way you can get them stopped."

And the witness further said that the way the plaintiff had said he stopped his stoker engine "is a common practice among firemen on Mallet type engines."

The testimony given by plaintiff's witness Taylor, over the objection of the defendant, is as follows:

"Q. We are discussing here the question about the stoker engine running after the steam is cut off? A. Yes, sir; they do it.

"Q. Do they do that? A. Yes, sir."

And the witness was further permitted to state that a few days before the trial he had gone to a similar engine on the yard, and when he got on the engine the stoker engine was running; that he found the throttle was closed and the cylinder cock open, and...