Davis v. Powell

• Decision Date: 18 December 1924
• Parties: JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS, v. CURTIS POWELL.
• Court: Virginia Supreme Court

Page 711

142 Va. 711

JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS, v. CURTIS POWELL.

Supreme Court of Virginia, Richmond.

December 18, 1924.

1. APPEAL AND ERROR — Conflicting Evidence. — Where the jury found a verdict for the plaintiff, the evidence adduced in his behalf, when it conflicts with that of defendant, for the purposes of appeal, is accepted as true.

2. MASTER AND SERVANT — Assumption of Risk — Section Man Riding on Railway Motor Truck to and from Work. — Plaintiff, a section man, was injured by a fall from a railway motor truck while going to work. The use of the motor car for transporting the section men was the accustomed manner and means of going to and coming from the work known to the plaintiff, and participated in by him for weeks, without objection or complaint. He was acquainted with the track and its curves. The work of repairs and reaching the points where repairs were to be made must necessarily be accomplished between the running of trains and this was known to the plaintiff. So that, as to all these things, involving dangers to a certain degree though they did, there is no act of negligence shown to aggravate the danger; they were dangers incident to the employment, and the plaintiff assumed the risk as to them.

3. MASTER AND SERVANT — Assumption of Risk — Section Man Riding to Work — Sudden Stop — Case at Bar. — A section man riding to and from his work on a railway motor car assumes the risk of meeting trains and sudden stopping to avoid collision.

4. MASTER AND SERVANT — Section Men — Assumption of Risk — Collision with Trains. — Ordinarily, section men or track men assume the risk incident to running of trains, whether extra trains or trains running on schedule time. Such employees are bound to know that regular trains may be delayed and pass at uncertain intervals, and that wild trains may be sent out over the road, and they assume the risk of danger therefrom.

5. MASTER AND SERVANT — Section Man — Meeting Trains — Jerk from Sudden Stop. — While a section man assumes the risk of an ordinary jerk resulting from sudden stopping to avoid a collision while riding to and from his work in a railway motor car, he does not assume the risk of danger arising from extraordinary jerks occasioned by the operation of the motor truck, unless the negligence and the danger arising therefrom were obvious.

6. MASTER AND SERVANT — Section Man — Meeting Trains — Jerk from Sudden Stop — Case at Bar. — In the instant case plaintiff, a section man, was injured by a fall from a motor car, on which he was riding to work, occasioned as he alleged by a jerk when the car stopped suddenly to avoid a collision.

Held: That if the car was running at fifteen or twenty miles an hour there would be some danger attached to stopping suddenly even at that rate of speed, but the jerk so occasioned would be an ordinary one, the danger from which the plaintiff assumed as well as the risk of meeting trains en route to his work, and all other ordinary dangers incident to his employment.

7. MASTER AND SERVANT — Section Man — Meeting Train — Jerks from Sudden Stop — "Error in Extremis." — Plaintiff, a section man, was injured by a fall from a railway motor truck upon which he was riding to work, occasioned as he alleged by the sudden stopping of the car by the foreman, who was driving, to avoid a collision. As between the danger from a sudden stopping and the danger of collision the foreman was confronted by a sudden emergency, brought about through no fault of his, and even if his judgment was erroneous this was not negligence.

8. MASTER AND SERVANT — Section Man — Meeting Trains — Jerk from Sudden Stop — Speed of Train — Evidence. — Plaintiff was injured by a fall from a railway motor car upon which he was riding to work, occasioned as he alleged by the sudden stopping of the car to avoid a collision. Plaintiff testified that the motor car was running at thirty or thirty-five miles an hour. While this was a mere estimate, he also testified that the foreman was running "awfully rapid" to keep out of the way of a passenger train.

Held: That the fact that the plaintiff could not definitely fix the speed of the car went to the weight of his testimony and not to its admissibility.

9. MASTER AND SERVANT — Section Man — Meeting Trains — Jerk from Sudden Stop — Running at Excessive Speed — Extraordinary Jerk. — Plaintiff, a section man, was injured by a fall from a railway motor car, occasioned as he alleged, by the sudden stopping of the car to avoid a collision.

Held: That if the foreman was running the car at a rate of speed in excess of the maximum permitted by the rules of the company, and to avoid an imminent collision suddenly applied his brakes, thereby causing an extraordinary and unusual jerk, and by reason of this the plaintiff was thrown forward upon the track, run over and injured; then the defendant was guilty of negligence, which was the proximate cause of plaintiff's injury, for which the defendant is responsible in damages, unless the plaintiff by his conduct assumed the extraordinary risk.

10. MASTER AND SERVANT — Assumption of Risk — Statement of Rule — Federal Employers' Liability Act. — The rule of assumption of the risk is that an employee assumes all the ordinary risks incident to the employment. He also assumes such extraordinary risks as are plain and obvious. He does not assume risks arising from the master's negligence, or from the negligence of fellow servants (under the Federal employer's liability act), unless they are obvious, or he knows of them and appreciates them, and continues in the service.

11. MASTER AND SERVANT — Assumption of Risk — Obvious or Known Danger. — At common law the rule is well settled that the servant assumes extraordinary risks incident to his employment or risks caused by the master's negligence, which are obvious or fully known and appreciated by him.

12. MASTER AND SERVANT — Assumption of Risk — Questions of Law and Fact. — The question of the assumption of the risk is usually one for the jury, but it is otherwise, if the evidence discloses facts upon which reasonable minds are not likely to differ.

13. MASTER AND SERVANT — Fellow Servant — Assumption of Risk — Federal Employers' Liability Act. — The fellow servants doctrine has been abolished under the Federal employers' act; but the doctrine of assumption of risks is still applicable to the Federal act in its original and undiminished force, save in one instance.

14. MASTER AND SERVANT — Assumption of Risk — Extraordinary Risk Known to Servant — Section Man Riding on Motor Car Driven at Excessive Speed — Case at Bar. — In the instant case plaintiff, a section man, was injured by a fall from a railway motor car, occasioned as he alleged by the sudden stopping of the car, which was being driven by the section foreman at an excessive rate of speed to avoid a collision with an approaching train. According to plaintiff's own statement he was fully conscious of the excessive rate of speed at which the foreman was driving and his reason for so driving, but there was no evidence of any protest on his part. On the contrary, he participated in all that was done, had ample time to appreciate what was an obvious departure from the rules and customs, and the dangers arising therefrom.

Held: That the plaintiff assumed the extraordinary risk of the foreman's negligence, and that this assumption of the risk is a bar to his recovery.

UPON A PETITION TO REHEAR.

May 28, 1925.

15. MASTER AND SERVANT — Section Man — Riding on Motor Trucks to Work — Assumption of Risk — Knowledge of Peril. — A section man who had been riding to his work for four months on a motor truck driven by his foreman assumes the risk of meeting trains on the track and the risk from the excessive speed of the truck against which he did not protest. Where, as in this case, the sole act of negligence relied on is participated in and voluntarily consented to by the person injured, with full knowledge of the peril, the question of the master's liability does not arise.

16. MASTER AND SERVANT — Violation of Rules — Failure to Allege — Waiver. — In an action by a section man for injuries sustained while riding to his work on a motor truck, stress was laid in a petition to rehear upon the violation of the rules of the company by the foreman in going upon the track ahead of a passenger train, and in the face of an approaching freight train, without finding out the location of the trains. No violation of the rules was charged in the pleadings nor established by the evidence and the question was not submitted to the jury by an instruction as to the alleged negligence.

Held: That the question of the violation of rules was waived.

17. NEGLIGENCE — Pleading — Instructions. — The jury cannot be turned loose to find a defendant guilty of any negligence which might be based upon a breach of any duties charged in the declaration, when the court has given all the instructions asked for by the plaintiff setting out his theory of the case and no mention is made of such charges of negligence in the instruction.

18. APPEAL AND ERROR — Sudden Emergencies — Point not Raised in Trial Court — Case at Bar. — While, in the instant case, an action by a section man for injuries received while riding to his work on a motor truck, the question whether the foreman of defendant was absolved from negligence because he was forced under the circumstances to act in emergency, was not raised in the trial court, yet upon a motion to set aside a verdict as contrary to the law and the evidence, if it appears in the appellate court that the facts proven in the court below established a case, as a matter of law, where the defendant was without his fault forced to act in an emergency, and an accident occurred resulting in injury to another, the appellate court would set the verdict aside although no mention was made in the trial court of the doctrine of error in extremis.

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