Chesapeake & O. Ry. Co v. Nixon

• Decision Date: 13 November 1924
• Citation: 125 S.E. 325
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. NIXON.

125 S.E. 325

CHESAPEAKE & O. RY. CO.

v.NIXON.

Supreme Court of Appeals of Virginia.

Nov. 13, 1924.

^*

Error to Circuit Court, Nelson County.

Action by Annie Nixon, as administratrix of the estate of Sam Joe Nixon, deceased, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

In this action there was a verdict and judgment for $12,000, recovered as a liability under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) against the plaintiff in error, the Chesapeake & Ohie Railway Company (hereinafter called the defendant company, or company), in favorof Annie Nixon, administratrix of Sam Joe Nixon, deceased (who will be hereinafter referred to as plaintiff and the decedent, respectively), for the death of said decedent, alleged to have been occasioned by the negligence of the defendant company, in that the engineman and fireman (the employees of the latter operating a train which ran down and killed the decedent) failed to keep a reasonable lookout for the decedent just before he was killed, when he was upon the track going over it in a velocipede, under the express permission of the defendant company, and when he was also engaged in the discharge of a duty incumbent upon him as an employee of the defendant company of inspecting the track (over which the defendant company was, at the time, engaged in interstate commerce) to see if it was in a proper and safe condition.

The circumstances under which the decedent was killed, as shown by the uncontroverted evidence, were as follows:

The decedent was, at the time he was killed, and had been for a number of years, a section foreman, his regular hours of employment on his section of the railroad being from 7 a. m. to 4 p. m. daily. For about a year next preceding his death he lived with his family in a house by the side of the railroad track, on the north side of and opposite a curve in the track. The track, as it approached the point opposite this house, from east to west, came through a cut several hundred feet east of the house, on a curve which bent to the left, as it extended westward, until it reached a point 575 feet west of the point opposite the house; thence extended a distance of 1, 377 feet in a straight line to a point beyond where the decedent was struck on the track by an extra freight train, consisting of engine, tender, and 10 gondola coal cars, and was killed, on a clear June day, at 6:35 o'clock in the morning. From thence the track extended on westward, practically straight, for a distance of nearly a mile. The section on which the decedent was foreman extended from a point east of his house to Midway, a point about 1 1/4 miles west of his home. The decedent and his force of men began their regular hours of work each morning at Midway, where the toolhouse was located, at 7 a. m., and ended such hours of, work at the same place each afternoon at 4 o'clock. It was the daily custom of the decedent, foreman, and his men to meet at the toolhouse from 7 to 20 minutes before 7 o'clock, so as to be ready to set out from the toolhouse promptly at that hour. Prior to the beginning of his occupancy of the aforesaid dwelling house the decedent asked and obtained the express permission of the supervisor of track of the defendant company, his superior officer in charge of section foremen of the defendant company on that part of the system of the latter, to make use of a certain velocipede, after he moved into said house, in going to and from the toolhouse at Midway. The velocipede was a three-wheeled vehicle, made to run over a railroad track, propelled by foot pedals, with a seat for the person using it, located directly over the right-hand rail of the track, geared so that it could travel only at a speed of about 9 or 10 miles an hour, a slow enough speed for the person operating it to have time to inspect the track closely in going over it for any defects which might exist in it needing repair. And One of the rules of the defendant company, which the evidence tended to show was, among others, faithfully observed by the decedent, imposed the duty upon the decedent, whenever he was going over the track, whether in or out of his regular hours of employment, to inspect the track for the purpose aforesaid.

The decedent was seen by the plaintiff, his wife, to go down to the railroad track opposite his home, there put the velocipede on the track, take his seat, and set out thereon for Midway at 6:30 a. m. of the day he was killed, which the evidence tended to show was about his usual time for setting out for Midway each morning. After he had gone some distance he was seen by her to look back just before the train could be seen by him, and thereafter to go on his way, pedalling the velocipede along the track. Just at this moment she saw the train come around the curve above mentioned, dash by the front of the house and on behind the decedent, who was then seen by the wife with his face continuously turned forward, not again looking back while he was in her sight, and he was in her sight until the train interposed itself between her and him as he was proceeding on the track. The train must have overtaken him in a few seconds, as we must conclude from the speed of the train and the place where the body was found—such speed being about 25 miles an hour, as estimated by the defendant's witnesses, and a greater speed is estimated by witnesses for the plaintiff. The body was found 1.952 feet west of the point opposite the dwelling house, and lying on the north and right-hand side of the track, about 9 feet therefrom, on the side of the railway embankment. The head was crushed at the back. The velocipede was broken and scattered into small fragments, some of which were found at different places along the track. The watch of decedent had stopped at 6:35 o'clock. No signal of any kind was given by the train, after the engineman, if he had been on his seat, and the fireman, had he looked, could have seen decedent and the position he was in in ample time for warning blasts of the whistle to have been given, and the train stopped, if the warning had not been heeded, as it was shown in evidence and uncontroverted thatthe train could have been brought to a standstill in 500 feet. The train went on, without stopping, until it reached the terminal of the run of its crew, which was at Gladstone, a few miles away. Neither the engineman nor the fireman were looking out at the time, and no one on the train saw the accident, or knew that any one had been struck until the train reached Gladstone.

There was conflict in the evidence as to whether any wind was blowing at the time, which prevented the decedent from hearing a road crossing blast of the whistle, which was given just before the train came opposite the said dwelling, and from hearing the noise of the train itself as it approached him. There was the testimony of several witnesses for the plaintiff, however, to the effect that there was a very strong wind at the time, blowing directly eastward, which carried the noise of said whistle blowing and of the moving train away from the decedent, so that it was a reasonable inference that he did not hoar it until it was upon him and struck him.

The engineman and fireman both testified as witnesses for the defendant company, and both admitted that they were not keeping any lookout ahead from the time they would have seen the perilous position of the decedent until after they had gone past the place at which he was killed.

The reason the engineman gave for his keeping no lookout at the time just before the train turned the aforesaid curve and came upon the straight track of 1, 377 feet and the further stretch of comparatively straight track...