Cooper v. P. C. & St. L. R, Co.

• Decision Date: 19 April 1884
• Citation: 24 W.Va. 37
• Court: West Virginia Supreme Court
• Parties: Cooper v. P. C. & St. L. R, Co.

24 W.Va. 37

Cooper

v.P. C. & St. L. R, Co.

Supreme Court of Appeals of West Virginia.

Submitted June 7, 1883

Decided April 19, 1884.

1. It is the duty of a railroad company not only to furnish reasonably well constructed and safe machinery and appliances for its ears for the use of its employes engaged in operating its road, but also to exercise continued supervision over the same to keep them in good and safe repair, (p. 58.)

A railroad company cannot divest itself of this duty, so as to relieve itself from responsibility for the non-performance thereof, by delegating the duty to any of its servants in any of its departments; and if it does delegate this duty to any of its servants and vest him with controlling or superior authority in regard thereto, the negligence of such servant is the negligence of the company, (p. 58.)

If such company or its servant, to whom it has delegated the performance of this duty, suffer such machinery, cars or appliances either from long continued use or any other cause to become unsound, unsafe or defective, and this unsoundness and defective condition are known to the company, or by the exercise of due care and diligence on its part they might have become known to it, and injury therefrom results to one of its employes without any fault of his, while in the performance of his duty, the company is responsible to such servant so injured, (p. 59.)

It is the duty of such railroad company to guard its employes from injuries resulting from unsound, unsafe and defective engines, cars and appliances by having the same continuously inspected by persons competent to perform that duty; and the negligence of such inspector in the discharge of this duty is the negligence of the company, (p. 59.)

A brakeman employed on one of the freight trains of a railroad company and such inspector or the master mechanic charged with the duty of keeping such machinery, cars and appliances in repair cannot be regarded as fellow servants in such a sense, as to prevent the brakeman from recovering of the company for an injury sustained by him because of the negligence of such inspector or master mechanic, (p. 59)

If a brakeman in the employ of a railroad company while in the performance of his duty and without any fault on his part is injured by the breaking loose or giving way of a hand-hold or any other appliance attached to its car and used to assist such brakeman in the performance of his duty, and such defect wasone that could have been discovered by a careful inspection of the car by a competent inspector and repaired, such railroad company is liable to such brakeman for the injury sustained by him, although the proximate cause of the injury was a result of the negligence of the inspector or the master mechanic respectively charged with the duty of respectively inspecting and keeping such hand-hold in repair, (p. 59.)

Woods, Judge, furnishes the following statement of the case:

This was an action of trespass on the case, brought by James W. Cooper, as the administrator of William Patton deceased, against the Pittsburgh Cincinnati and St. Louis Railway Company, to recover damages for the negligence of the defendant whereby the said Patton lost his life. The declaration alleges that the defendant was a corporation operating a line of railroad in the county of Brooke in this State, and also a line of railroad through the State of Ohio, connecting with said line of railroad through said county of Brooke; that the defendant was the owner of a certain train of freight cars, and a locomotive thereto attached employed in carrying freight over said lines of road for hire; that the said William Patton on the 17th of June, 1879, was in the employ of the defendant as a brakeman on said train of freight cars, hired to serve the defendant on said train as a brakeman on a trip and run of said train from the town of Dennison in the State of Ohio to the station on the line of railroad in the county of Brooke, known as Collier's Station; that it then and there became and was the duty of the defendant to use due care, that the said freight cars and each of them, and every part, parcel, attachment and appliance thereof, used or to be used by the said Patton in and about his work and employment as brakeman on said train, should be good, strong, safe, sound, and sufficient, so that Patton might use, operate, work, and manipulate the same and every part thereof, in and about his employment as such brakeman without danger, risk, hurt or injury to him; that the defendant did not use due and proper care that the said freight cars and every of them and every part, parcel, attachment and appliance of said cars used or to be used by said Patton about Ins labor as such brakeman should be good, strong, &c, so that he might use the same so far as it might he necessary for him to use the same in and about the proper performance of his duty as such brakeman without danger, &c, but wholly neglected to do so and negligently permitted and suffered one of said freight cars designated as number "4444" to be and remain weak, unsafe and insufficient, and to have on it a certain attachment and appliance called a "hand-holdwhich was unsafe, weak, and insufficient, the condition of which was unknown to Patton; that when said train was approaching Collier's Station, the defendant's conductor on said train as he had'authority to do, ordered said Patton to uncouple and detach the locomotive from the residue of said train and then to climb upon the top of said car "4444" and to check and stop said train at said station; that in obedience to such order be did uncouple and detach said locomotive and while he was executing said order in a careful and prudent manner without negligence on his part, and whilst necessarily using said hand-hold to enable him to get upon the top of car No. "4444," the said hand-hold broke loose and separated from said car, without any negligence on his part, whereby said Patton was thrown upon the railroad track at or near said station in Brooke county on the 17th day of June, 1879, and killed. For this injury the plaintiff'claimed five thousand dollars damages. No question was raised as to the sufficiency of the declaration. The defendant pleaded not guilty, and on the trial of the issue the jury found for the plaintiff three thousand dollars. Before the jury retired to consider of their verdict, the court at the instance of the plaintiff gave the jury the following instructions: "If the jury believe from the evidence that the death of William Patton was caused by a defect in the hand-hold attached to the defendant's freight car No. "4444," or by a defect in the boards or timbers of said freight-car to which said hand-hold was fastened, and if the jury further believe from the evidence, that such defect was known to said defendant, or was of such a character that said defendant might have known it by the exercise of that degree of care and diligence which a man of ordinary and reasonable prudence would under the circumstances exercise in regard to his own private affairs, they will find for the plaintiff and assess his damages at such sum as under all circumstances of the case they may think said plaintiff entitled to recover in this action, not exceeding five thousand dollars." To the giving of this instruction the defendant excepted. The defendant then asked the court to charge the jury as follows:

first proposition.

"That the verdict of the jury must be in favor of the i defendant, " second proposition.

"That a brakeman who enters the employ of a railroad company, in consideration of the compensation to be paid him, takes upon himself the ordinary risks of the employment, and the railroad company is not liable to him for injuries through such risk incurred."

third proposition.

" That among the ordinary risks to which brakemen upon a railroad train are subjected, are the liabilities to negligence on the part of the machinists, inspectors and repairers who have charge of the repairs of cars and the hand-hold apparatus, and that for injury suffered through the negligence of said employes of the company by a brakeman in their employ, the company is not liable."

fourth proposition.

"That when a brakeman enters the employment of a railroad company in that capacity and is furnised with machinery of which he can judge as well as any other person, he assumes all the risks incident to the use of such machinery. By entering the service voluntarily, he takes upon himself the hazards and dangers properly incident to the services in which he engages."

fifth proposition.

" If the jury find from the evidence that the hand-hold mentioned in plaintiff's declaration had become weakened or defective by reason of ordinary use and wear, and the injury resulted from the giving way of such defective handhold, and if they further find that the said defects were latent and not discernible by ordinary care and were unknown, the injury thereby occasioned must be regarded from a casualty incident to the business, and the defendant will not be liable."

sixth proposition.

"That if the defendant should be held responsible that said car when first used was safe and sufficient, yet keeping it in proper repairs afterward is the work of its servants, who are c co-employes of the plaintiff's decedent, and for which the defendant is not liable in this action."

s even t h pr o po sition.

"Before the plaintiff can recover in this action, he must establish by a preponderance of proof both that a defect such as complained of in plaintiff's declaration existed, and that either the same was known to the defendant or that it could have been known by the exercise of ordinary and reasonable care."

eighth proposition.

"The decedent, William Patton, being an employe of the defendant at the time he received the injury from which he died, it was his duty to take ordinary precaution to prevent injury to himself and his fellow-servants while in the discharge of his...