Easter v. Va.n Ry. Co.
| Decision Date | 01 June 1915 |
| Citation | 76 W.Va. 383 |
| Court | West Virginia Supreme Court |
| Parties | Easter, v. Virginian Railway Co. |
1. Appeal and Error Petition Sufficiency.
A petition for appeal or writ of error, accompanied by the record, is sufficient if it states the case, assigns error and points out the decree or judgment complained of. Its brevity is not objectionable, (p.387).
2. Master and Servant Injuries to Servant Federal Employers' Liability Act Declaration Sufficiency Against Demurrer.
A declaration against a railroad company, in an action by one of its employees for personal injury, received while employed in interstate traffic, is not demurrable because its averments show that the injury was caused either by the negligence of a fellow servant or by the combined negligence of himself and a fellow servant. (p. 387).
3. Courts Master and ServantFederal Employers Liability Act 0 peration Enforcem ent.
In all cases to which it is applicable, the Federal Employers Liability Act supersedes state statutes and the common law; and federal and state courts are given concurrent jurisdiction for its enforcement. (p. 387).
4. Master and Servant Injuries to Railroad Employe Employers Liability Act Negligence of Fellow Servant Contributory Negligence.
The act imposes liability upon the carrier for the death or injury of its servants, notwithstanding it may have resulted wholly from the negligence of a fellow servant, or from the combined negligence of a fellow servant and the deceased or injured party. (p. 387).
5. Same Injuries to Servant Federal Employers Liability Act Contributory Negligence Mitigation of Damages.
When actionable negligence is shown, contributory negligence is no defense, but should be considered by the jury in mitigation of damages only. (p. 387).
6. Same Injuries to Employe Federal Employers Liability Act Defenses Negligence of Fellow Servant.
Although a railroad company is under no duty to adopt rules, requiring its employees engaged in shifting engines and cars upon its yards at night, to give warning to other employees by ringing bells, blowing whistles, or by signal lights at the rear of backing engines, Jones v. Virginian Railway Co., 74 W. Va. 666, 83 S. E. 54, still, if it does adopt and promulgate a rule, unambiguous in its terms, requiring a light to be carried on the rear of engines "running backward by night, without cars or at the front of a train pulling cars," and the employees understand such rule as applying to the yards as well as to the main line, and it has become the custom among them to carry such light at night, and an employee, passing over the yards at night, is struck and injured by a backing engine, on which a co-employee had neglected to place a light, the company can not escape liability by proving that the rule was not intended to apply to its railroad yards, if the absence of such light was the sole, or a contributing cause of the injury. In such ease the failure to carry a light is the negligence of a fellow servant, and is actionable under the federal act. (p. 392).
7. Same Injuries to Servant Continuation of Relation Trainmen.
The relation of master and servant, between a railroad company and one of its trainmen, does not necessarily terminate the instant the train reaches its destination on the company's yards, or the servant ceases to labor, but continues for a reasonable time thereafter to enable such employe to wash himself and change his soiled clothing, in the caboose provided with the conveniences therefor, before going to his lodging place, such being the custom of trainmen. (p. 393).
8. Same Continuation of Relation Reasonable Time Question for Jury Injury to Trainmen Instructions.
What is a. reasonable time is generally a question of fact for the jury to determine from all the facts and circumstances of the particular ease; but when there is no evidence tending to prove the time reasonably required for a trainman to make his toilet, preparatory to leaving the train for his lodging place, and his evidence proves that he consumed no more time than was required for that purpose, the fact that about one hour had elapsed between the arrival of the train and the accident, does not warrant the inference that the time was unreasonable; and the giving of an instruction which assumes the existence of the relation of master and servant, at the time of the accident, is not reversible error. In view of the established facts, it can not be said, as matter of law, that an hour was unreasonable time. (p.393).
9. Appeal and Error Ground for Reversal Instructions.
The giving of an instruction presenting an abstract legal question is not necessarily cause for reversal. (p. 395).
10. Same Interest Ground for Reversal Excessive Interest.
In tort actions, interest runs only from the date of the judgment, and it is error to give judgment for interest from the date of the verdict; and, if such excessive interest exceeds one hundred dollars, it is reversible error. (p. 396).
(PoFfenbarger, Judge, dissenting in part.) Error to Circuit Court, Mercer County.
Action by W.H. Easter against the Virginian Railway Company. Judgment for plaintiff, and defendant brings error.
Reversed and rendered.
G. A. Wingfield and Brown, Jackson & Knight, for plaintiff in error.
Samuel W. Williams and John R. Pendleton, for defendant in error.
Plaintiff was employed as brakeman on defendant's freight train running from Page to Princeton, both in the State of West Virginia, The train pulled into the railroad yards at the latter place about 3:15 A. M., on the 23rd of January, 1912. Defendant is an interstate carrier, and the train was made up of carloads of coal consigned to points in the state of Virginia. Defendant maintained extensive yards at Princeton, consisting of about fourteen side tracks about one mile long, besides the main line. According to the custom of the railroad company the cars billed to points farther east were there shifted and collected into other trains. The train on which plaintiff was braking being employed in interstate traffic, the crew in charge of it were bound to observe the federal statute, prohibiting employes from serving more than sixteen hours out of twenty-four, and the sixteen hours being up, at 3:15 o'clock A. M., just as the train had entered the yards, they turned the train over to another crew. Plaintiff was on the engine? and, as the train entered the yard, got off, while the train was still moving slowly, and waited until the caboose came up and then got on it for the purpose of washing and changing his clothing. A fellow brakeman by the name of Jones was also in the caboose. After plaintiff had completed his toilet they started across the railroad yards, and, just as they approached the main track, were struck by the tender of an engine running backward down the track to the roundhouse. Jones was killed and plaintiff was severely injured. There was no signal light on the back end of the tender, and no warning was given of the engine's approach, either by ringing a bell or sounding a whistle. The night was dark, and plaintiff says he knew the custom was to detach the engine from the train, as soon as it arrived, and switch it over to the main track, at the east end of the yards, and back it down to the roundhouse, and was, therefore, expecting it; that it was the duty of the crew in charge of the train to take the engine to the roundhouse, if they were not required to stop work on account of the sixteen hour law; that just as he and Jones reached the track he looked up the track for the engine and did not see it; that he then turned his head to see if he was in danger of an engine and train, nearby, which he heard approaching from the west, on another track, and was instantly struck by the tender of the backing engine, and rendered unconscious; and that he did not hear the backing engine on account of the noise from the other engine nearby. The engineer on the incoming train testified that he saw plaintiff and Jones when they were struck, and saw the backing engine, beyond them, by the light shining from the depot and from a street lamp not far away. Plaintiff recovered a judgment for $7,500 and defendant brings error.
Jones's administrator sued for damages for his unlawful death, and that case was reviewed by this court, Jones v. Virginian Ry. Co., 74 W. Va. 666, 83 S. E. 54, but the decision in that case does not control this case. It did not appear that Jones was engaged in interstate traffic; hence that case was determined according to the state law, and not according to the federal statute concerning the liability of interstate carriers for injury to their employees.
Before considering the errors assigned by defendant, we will dispose of a preliminary motion, made by plaintiff, to dismiss the writ of error. The ground of the motion is that the petition does not sufficiently assign error. It is brief, but we think it fully complies with Sec. 8, Ch. 135, Code 1913, and with Sec, 1 of Rule I, of this court. The statute simply says the petition shall assign error, and the rule of court only requires that it shall "briefly state the case and must assign error, naming the particular decrees or judgments complained of and the date of their rendition." The rule expressly forbids argument in the petition, but provides that a separate note of argument may accompany it, It is a desideratum of this court that the petition be brief, provided however, it calls attention to the particular matters complained of, and refers to the places in the record where they may be found. The record in this case is exhibited with the petition, and the petition points out the matters complained of, gives the date of the judgment and calls attention to the rulings of the court upon certain instructions, referred to by their record numbers. Its brevity is no objection, and the motion will be overruled.
The first error assigned by defendant is the overruling...
To continue reading
Request your trial