Chesapeake & O. Ry. Co v. Palmer

• Decision Date: 22 December 1927
• Citation: 140 S.E. 831
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. PALMER.

140 S.E. 831

CHESAPEAKE & O. RY. CO.

v.PALMER.

Special Court of Appeals of Virginia.

Dec. 22, 1927.

Error to Circuit Court of City of Richmond.

Action by B. W. Palmer by motion against the Chesapeake & Ohio Railway Company. Verdict and judgment for plaintiff, and defendant brings error. Reversed, judgment set aside, and case dismissed.

D. H. Leake and Leake & Spicer, all of Richmond, for plaintiff in error.

Sinnott, May & Leaman, of Richmond, for defendant in error.

HOLT, J. This is an action by motion to recover damages for injuries suffered by the defendant in error, B. W. Palmer. There was a verdict and judgment for the plaintiff. To this a writ of error has been obtained.

Brooks-Calloway Company, an independent contractor, undertook to do certain work for the Chesapeake & Ohio Railway Company in and about its yards at Clifton Forge, Va. This work was quite extensive. Palmer, prior to the. date of his injuries, had been employed by that construction company for a period of about two weeks. He was a member of what was known as the "mud track" gang, which consisted of eight men who worked on a track at the extreme south or Jackson river side of the yard. On the morning of the accident, and at about 9 o'clock on November 2, 1923, he was engaged in dumping mud near the "point of clearance" shown upon the blueprint, which is incorporated into this opinion. Some distance across the yard, at approximately 115 feet, was a water plug sometimes called a "water column." The morning was clear and cold. He started across the intervening tracks to this "water column" to get a drink of water, as was his custom. Other members of his gang were in the habit of doing the same thing. When he reached that next to the water column, and at a point approximately 40 feet east thereof, it may have been a few feet less, he stumbled on the south rail, fell, and in doing so was stunned. He saw an engine approaching, but, owing to his dazed condition, was not able to remove himself from the place of danger. He did, however, succeed in dragging his body across the north rail. While engaged in this attempt the engine ran over and cut off both his legs, and that accident is the foundation of this action. There were two trials. The first had in June, 1925, resulted in a verdict in favor of the plaintiff in the sum of $15,000. On motion of the defendant the trial court set it aside as contrary to the law and evidence, and ordered a new trial, to which action of the court the plaintiff duly excepted. In June, 1926, another trial was had, which resulted also in a verdict for the plaintiff; the recovery in this instance being $12,500. The defendant moved to set it aside. This motion was overruled, and judgment for said sum entered. It is to this that a writ of error was obtained.

In such circumstances we look to the first trial. Should the court, upon an inspection of the record there, be of opinion that the first verdict should have been confirmed, it will so order, and not undertake to examine the proceedings of the second trial at all. On the other hand, should it appear that the first verdict was properly set aside by the trial court, it becomes necessary, as a matter of course, to examine the second record.

For reasons which will be hereafter stated we are of opinion that there was no error in the action of the trial court in the first instance, and so, without examining that record in detail, will take up the last case first. This is done as a matter of convenience, for the major questions are the same, the evidence is more elaborate, and the facts were more fully developed at the second hearing.

It is not out of place here to note the distinction that obtains between verdicts approved by the trial judge and those disapproved by him. The first is taken by the appellate court as on a demurrer to evidence.

In the latter case the rule is substantially more liberal. Vandenbergh v. Buckingham Corp., 142 Va. 397, 128 S. E. 561.

Palmer was an employee of Brooks-Calloway Company. He elected to apply for compensation under the Workmen's Compensation Act, and was awarded a recovery of $9 a week for 500 weeks from November 2, 1923, the date of the accident.

The contract between Brooks-Calloway Company and the railway contains, among other things, this stipulation:

"In all operations connected with the work embraced in this contract, the contractor will be held responsible for any failure to respect, adhere to, and comply with, all local ordinances and laws controlling or limiting in any way the actions of those engaged upon the work, or affecting the materials or the transportation or disposition of them. And the contractor hereby assumes all liability for, and agrees to indemnify the company against all loss, cost or damage, for any liens, claims for materials, or from laborers, mechanics; and others, and from any damages arising from injuries sustained by mechanics, laborers, or other persons by reason of accidents or otherwise, and from damages sustained by depositing materials to public injury, or of any person or corporation, including cost and expenses of defense, provided that he be duly notified of the bringing of suits in such eases, and be permitted to defend the same by his own counsel."

For the railway it is said that Palmer had no right to bring this action at all because of the express provision of the statute, and that the casualty company which brought it in his name and for their joint benefit had only such rights as Brooks-Calloway Company had under whom it held by subrogation. This company, it is said, was under contract to hold the railway harmless, and could not itself have instituted any such litigation, in short, that it could not sue one it had contracted not to sue, and that Palmer's rights could rise no higher than those of the construction company which held them by statutory assignment.

The "Virginia Workmen's Compensation Act" is thus brought under review, and section 12 in particular. This section appears in a footnote.¹

In principle the matter here suggested has already been passed upon by this court, and requires no elaborate consideration. Southern Ry. Co. v. United States Casualty Co.. 136 Va. 475, 118 S. E. 266, presents facts strikingly like the case at bar, except that there was no undertaking on the part of the employer to save the defendant harmless. It was said in a statement of the facts that:

"At the time of the accident, S. E. Moorefield, an employee of L. D. Moorefield, doing business as Pure Pood Bakery, acting within the scope of his employment, was driving an automobile truck, belonging to L. D. Moorefield, over the Henry street crossing of the defendant's railroad in the city of Danville, Va. L. D. Moorefield carried a workman's compensation insurance policy with the plaintiff. The plaintiff, as such insurance carrier, having assumed the liability of the employer therefor, paid s. E. Moorefield the compensation due under the policy on account of his injuries, and claims to be subrogated to the rights of the employer in the premises."

The court in its opinion observed:

"We dissent from the contention of the defendant that under the provision of the statute just quoted the employer, at the time of the injury to the employee, had no rights which could be asserted and that, therefore, the plaintiff here is undertaking to assert a right not vested in it by statute."

And held that:

"At the time of the injury to the employee, the employer had the right, upon the making of a lawful claim by the employee against the employer for compensation under the act, to recover such damages as the injured employee might recover against any other party, for such damages. Upon the making of such claim, theemployer's rights, as assignee of the employee, relate back and are the same as those of the employee at the time of the injury."

This statute again came under consideration in Smith v. Virginia Ry. & Power Co., 144 Va. 169, 131 S. E. 440. There Stratton was the motorman of a street car. Smith negligently drove an automobile against, and injured, him. Stratton, under the Workmen's Compensation Act, was awarded damages against the street car company, and was paid by it. He then brought an action in his own name against Smith, and was allowed to amend his notice by inserting as plaintiff "Virginia Railway & Power Company, who sues in the name of Willie Lee Stratton." Against this amendment Smith protested.

The court said:

"(1) The contention is that Stratton could not maintain the action because of the first clause of section twelve of the act, hereinbefore quoted. That clause, however, refers only to the remedy of an employee against his employer, and it is only his right to sue his employer for damages which is barred by the acceptance of compensation under the act. No argument to support this conclusion is necessary, as it seems to us, because he who runs may read it in the statute.

"The next clause of the section quoted refers to an entirely different right, and subrogates the employer who has paid compensation to his employee under the act to the right to enforce any legal liability against such other party as may be liable in damages for the injury. The employer is not only subrogated to any such right of the employee to enforce any such legal liability against another, but the statute in express terms provides that he may enforce it ''in his own name or in the name of the injured employee, or his personal representative.' "

And again:

"We observe that the Nebraska court, in Muncaster v. Graham Ice Cream Co., 103 Neb. 381, 172 N. W. 52; in upholding the right of the injured employee to maintain an action against a third party, says: 'Evidently the intent of the Legislature was not to limit an employee to the recovery only of the workmen's compensation act; but when, as a matter of justice, the employee was entitled to recover a greater compensation than is provided for in the act, then he had the right to...