Dumphy v. Norfolk

• Decision Date: 19 March 1918
• Citation: 82 W.Va. 123
• Parties: Dumphy v. Norfolk & Western Ry. Co.
• Court: West Virginia Supreme Court

82 W.Va. 123

Dumphy

v.Norfolk & Western Ry. Co.

Supreme Court of Appeals of West Virginia.

Submitted March 6, 1918.

Decided March 19. 1918.

1.com merck Federal Employes Liability Act Engaged in "Inter-

state Commerce.''

Plaintiff, an electrical engineer, employed by defendant to instruct its motormen how to operate motors, in interstate business, was while so employed engaged in interstate commerce within the meaning of the Federal Employers Liability Act, (p. 125).

2. Same Federal Employers' Liability Act Injury While Engaged

in Interstate Commerce "Employee."

The duties of such employee requiring him to ride passenger trains and freight trains, and at times to board them while in motion, and whose time, pay and service began and ended at a certain point on defendant's railway remained such employee within the meaning of said act so long as he was engaged in the discharge of his duties as such and while attempting to board a freight train to get back to his initial point in order to complet i his day's service, (p. 126).

3. Master and Servant Federal Employers' Liability Act Assump-

tion of Risk Reliance on Master's Care.

Such servant, when so employed, assumes all the ordinary risks of his employment, including the risk of mounting and riding moving trains, but he does not assume extraordinary risks and hazards, the result of negligence on the part of the railway company or those for whom it becomes responsible. He has the right to assume that his employer will not subject him to such extraordinary risks and hazards, and may act on this assumption, unless they are so open and apparent as to cause a man of ordinary prudence to see and appreciate them. (p. 127).

4. Same Federal Employers' Act "Negligence."

A railway company is negligent within the meaning of said act when its railway engineer refuses or neglects to obey the order of his superior officer to stop or slow down at a particular point and pick up such employee engaged in interstate commerce having knowledge of such order and relying thereon, or so negligently manages his engine and train as to do injury to such employee lawfully on his train. (p. 127).

5.Damages- Excessive Damage Loss of Arm and Leg.

A verdict in favor of such an employee so injured, of the age of thirty one years, for $30,000.00, for the loss of his right arm above the elbow and of his left leg below the knee, and for mental and physical pain and suffering endured, not shown to have been influenced by bias, prejudice, partiality, corruption or mistake on the part of the jury, or misdirection of the court, will not be set aside as excessive. (p. 131).

Error to Circuit Court, Mingo County.

Action by Chester A. Dumphy against the Norfolk and Western Railway Company. Judgment for defendant and plaintiff brings error.

Reversed; verdict and judgment rendered for plainti],.

Charles J. Shuck and Wiles & Bias, for plaintiff in error. Theodore W. Reath and Holt, Duncan & Holt, for defendant in error.

Miller, Judge:

Plaintiff in error was plaintiff below in an action brought

by him against defendant for personal injuries alleged to have been sustained by him because of the negligence of the defendant, while employed in interstate commerce.

The action was founded upon the Federal Employers Liability Act of Congress, Fed. St. Anno., 1909 Suppl., section 1, page 584, and the judgment complained of, pronounced upon defendant's motion, set aside the verdict in favor of plaintiff for $30,000.00, and awarded the defendant a new trial.

The issues involved on the trial and disposed of by the various rulings of the court in the admission and rejection of evidence, the giving and refusing of instructions to the jury, and the motion of the defendant for a new trial awarded, are as follows: (1) Was plaintiff, at the time of his injuries engaged with defendant in interstate commerce? (2) Was he at the same time an employee in the service of the company, and not a passenger or trespasser? (3) Was there any proof of negligence rendering defendant answerable in damages? (4) Were the damages found by the jury excessive?

Plaintiff in support of the errors assigned for reversal affirms the first three propositions, and negatives the fourth, while the defendant, of course, would negative issues one, two, and three, and affirm the fourth.

On the first question the evidence shows that plaintiff was an electrical engineer, employed by defendant with others to instruct its motormen how to operate its electric motors over that part of its railway, then recently electrified, between Bluestone Junction and Vivian, West Virginia, stat--tions on defendant's road on the western slope of the Flat Top Mountain. His headquarters were at the City of Bluefield, east of Bluestone Junction, and where he made his reports to the train dispatcher of that division, and also received his orders, but his time and pay began and ended at Bluestone Junction. He did not always get upon the motors at Bluestone Junction; but was required to get them wherever they might be in service, and to do this as well as to reach headquarters he was obliged to ride passenger or freight trains as occasion might require, and was provided with passes for this purpose. These motors were employed as pushers in helping the steam engines with their loads of coal up the Flat Top Mountain, and in hauling empties back to the coal fields, employed in interstate commerce, their work as helpers beginning generally at North Fork, a few miles east of Vivian. This made plaintiff an interstate employee generally, and it is not controverted that on the day of his injuries and up to the time he was relieved at North Fork he had been employed in interstate commerce. The controversy is as to whether he was so employed at the time he was injured.

On the second question the facts are these: On April 2, 1915, just before he was injured,-plaintiff had left the motor he had been riding that day at North Fork about nine or nine thirty o'clock in the evening, but his duties and time and pay did not end until he had made his way back to Bluestone Junction. He was required to report for orders the following morning at Bluefield. To enable him to do this, Peters, the trainmaster at North Fork, at the request of Quinn, then engaged in testing the side rod equipment on Motor No. 2507, now Chief Electrical Engineer, with headquarters at Roanoke, Virginia, in the presence of plaintiff, called up Snidow, then assistant yard master at Eckman, a. station west of North Fork, and directed him to order eastbound freight No. 84, designated "First 84", as plaintiff swears, "to pick him up at North Fork", and plaintiff also swears that immediately after so phoning Snidow, Peters turned to him and said, "You wait here and 84 will slow down for you." Plaintiff also swore, and there is little or no evidence to the contrary, that he and other trainmen were frequently required in the discharge of their duties to jump or board moving trains, and that his orders when caught out on a trip were to get back the best way he could. He says he could have gone back to Bluestone Junction on the motor he was riding that day, but could not have reached headquarters that night, unless he got No. 84 at that point or at Morgan, a small station west of Bluestone Junction, where No. 84 usually took water, but that when he asked Peters what he should do, Peters said "You stay right here and I will 'phone Eckman and have 84 pick you up." Plaintiff did as directed, and waited at North Fork until No. 84 came along about twelve o'clock that night. He saw the train approaching around a curve, and when close enough he says he gave the engineer a signal to which the latter responded by two blasts of the whistle, and plaintiff made preparations to mount the train, but when the engine passed him he thought it was moving too fast to get upon it; that'he then picked out a car with steps and ladder, and when it reached him, and thinking the train had slowed down enough to make it safe to get aboard, he grabbed the round of the ladder with both hands and landed safely with his knees in the stirrup; that the engine then gave a sudden violent jerk forward throwing him out of the stirrup, and breaking the hold of his right hand and then of his left, and throwing him under the train, resulting in the cutting off of his right arm and his left leg, the injuries of which he complains.

The only substantial conflict in the evidence is whether the order to "First 84" was to "slow down" and pick up plaintiff, as he swears, or to "stop" and pick him up, as Peters and Snidow swears. Garrett, the engineer on No. 84, admits that he received the order, and that it was read to him, and that he put it in his pocket, but professes that when he reached Bluefield and there learned of plaintiff's injuries he looked or felt in his pocket for the message, but could not find it. Snidow and his clerk to whom he dictated the message swear no record of the message was kept, although it was signed H. C. Weller, Superintendent, and neither the original nor a copy of the message was produced on the trial.

There is no question that when actually employed on the motors the day of his injuries, plaintiff was assisting in hauling interstate trains; nor is it controverted that the train doing him the injury was an interstate train. Nor is it controverted that his employment required him to have his headquarters and report at Blueficld; nor that his time and pay, unless otherwise ordered, began and ended at Bluestone Junction. He spent the night of April 1, at North Fork, but this was upon special order of his superior, and at his or the railway company's expense. He had no such order for the night of April 2nd, but in trying to make his way back to Bluestone Junction and to headquarters he was acting under his general orders. Proper performance of his duties called for rest at headquarters and reporting for duty the next morning to the train dispatcher, and then...