Easter v. Va.N Ry. Co

CourtSupreme Court of West Virginia
Writing for the CourtWILLIAMS
Citation76 W.Va. 383,86 S.E. 37
PartiesEASTER . v. VIRGINIAN RY. CO.
Decision Date01 June 1915

86 S.E. 37
76 W.Va.
383

EASTER .
v.
VIRGINIAN RY. CO.

Supreme Court of Appeals of West Virginia.

June 1, 1915.


[86 S.E. 37]

On Petition for Rehearing, Sept. 7, 1915.

(Syllabus by the Court.)

Poffenbarger, J., dissenting in part.

[86 S.E. 38]

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, of Norfolk, Va., and Brown, Jackson & Knight, of Charleston, for plaintiff in error.

Samuel W. Williams, of Wytheville, Va., and John R. Pendleton, of Princeton, for defendant in error.

WILLIAMS, J. 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 23d of January, 1912. Defendant is an interstate carrier, and the train was made up of car loads of coal consigned to points in the state of Virginia. Defendant maintained extensive yards at Princeton, consisting of about 14 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 16 hours out of 24, and, the 16 hours being up at 3:15 o'clock a. in., 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 16-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 near by 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 repovered a judgment for $7,500, and defendant brings error.

Jones' 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 employes.

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 section 8, c. 135, Code 1913 (sec. 4988), and with section 1 of rule 1 of this court (85 S. E. xix). 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 of its demurrer to the declaration. It contains three counts, and the demurrer is to each separate count as well as to the entire declaration. Each count should state a good cause of action and be complete within itself. One count cannot be supplemented by reading into it the averments contained in another. Hence, if any count is bad, the demurrer to it should have been sustained. But if any one of the counts is good, and the evidence on which the case was tried is admissible under it, the error, if any, in failing to sustain the demurrer to the bad counts, would not be prejudicial. The third count avers that defendant was an interstate carrier, and that at the time of his injury plaintiff was employed by it in interstate

[86 S.E. 39]

commerce; that he was employed as brake-man, and in discharging his duty as such was frequently required to cross to and fro over defendant's numerous tracks upon its yards at Princeton; that it was defendant's duty "to use due and proper care and precaution in the running, control, shifting, and management of its said trains, locomotives, engines, tenders, and cars on its said yard and side tracks and main track at Princeton, W. Va., and to provide lights and signals on the same in the nighttime, and to sound warning of their approach, so as to prevent the said plaintiff from being run into and struck by the same, and to give said plaintiff warning of the approach of the same." The breach of duty causing plaintiff's injury was alleged to be the negligent and careless running of an engine and tender backward on a dark night over one of the tracks of defendant's yards at Princeton, and against plaintiff, while he was crossing the yards by the usual and customary way, going from the train on which he had been braking to his home, without having a light of any kind on the front end of the tender, and without giving plaintiff any notice of its approach by blowing the whistle or ringing the bell. Measured by the rule respecting an interstate carrier's liability for injury to one of its employes engaged in interstate commerce, this count in the declaration is certainly good. Even though, as a general rule, a railroad company may not be required to provide for the carrying of lights on the rear of its engines backing over its yards at night, for the protection of its employes, as was held in Jones, Adm'r, v. Virginian Railway Co., 74 W. Va. CGC, 83 S. E. 54, L. R. A. 1915C, 428, wherefore the omission to do so would not, in all cases, constitute negligence, still there may be circumstances and conditions making it negligent not to do so in some cases, and plaintiff had a right to show that, in this particular case, a reasonable regard for the safety of the employes made it necessary. Moreover, the failure to have a light on the backing tender is not the sole act of negligence averred; the failure to sound a bell or to give any other signal of warning is also alleged as negligence. True, the latter averment shows negligence of a fellow servant only, for which the master is not liable under the common law; but the rule is otherwise under the federal Employers' Liability Act. By that act the common law respecting a carrier's liability to one of its employes, for injury received while engaged in interstate traffic, is altered in many respects, and materially so with regard to the doctrine of assumption of risk and contributory negligence. Cases falling under that act are governed by it; it supersedes the state law, in all cases wherein it is applicable. Illinois Central R. Co. v. Nelson, 203 Fed. 956, 122 C. C. A. 258; Mondou v. New York, etc., R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 328, 18 L. R. A. (N. S.) 44; Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; St. Louis, etc., Ry. Co. v. Hesterly, Adm'r, 228 U. S. 702, 33 Sup. Ct. 703, 57 L. Ed. 1031; Michigan Central R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176. And section 6 of the act, as amended April 5, 1910, confers on the state courts concurrent jurisdiction with the federal courts in its enforcement. Illinois Central R. Co. v. Nelson, supra; Mondou v. New York, etc., R. Co., supra; Seaboard Air Line Ry. v. Horton, supra. The negligence of a fellow servant does not, under the federal act, as it does under the common law, relieve the carrier from liability; and, while contributory negligence is proper to be considered in mitigation of damages, it does not defeat a plaintiff's action. Southern Railroad Co. v. Gadd, 207 Fed. 279, 125 C. C. A. 21; Id., 233 U. S. 572, 34 Sup. Ct. 698, 58 L. Ed. 1099; Missouri, etc., R. Co. v. Poole (Tex. Civ. App.) 123 S. W....

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31 practice notes
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • 30 Marzo 1925
    ...L.Ed. 777; Erie Railroad Company v. Winfield, 244 U.S. 170, 61 L.Ed. 1057; Easter v. Virginian R. R. Co., 76 W. V. 383, 11 N.C. C. A. 101, 86 S.E. 37; Czary case, 253 U.S. 86, 64 L.Ed. 794. The most that appellee could claim for himself under the circumstances shown by this record was that ......
  • Holliday v. Merch.S' & Miners' Transp. Co, (No. 4512.)
    • United States
    • Supreme Court of Georgia
    • 27 Febrero 1926
    ...etc., Co., 90 Neb. 470, 133 N. W. 878; St. Louis, etc., Ry. Co. v. Davis (Tex. Civ. App.) 262 S. W. 923; Easter v. Virginian Ry. Co., 76 W. Va. 383, 86 S. E. 37; Taylor v. Bush, etc., Co., 6 Pennewill (22 Del.) 306, 66 A. 884, 12 L. R. A. (N. S.) 853; Salabrin v. Ann Arbor R. Co., 194 Mich.......
  • Milburn v. Chicago, M., St. P. & P. R. Co., No. 30285.
    • United States
    • Missouri Supreme Court
    • 3 Septiembre 1932
    ...see, also, 36 A. L. R. 906 (annotation); Missouri, K. & T. R. Co. v. Rentz (Tex. Civ. App.) 162 S. W. 959; Easter v. Virginian R. Co., 76 W. Va. 383, 86 S. E. It would, of course, be much easier to administer the federal act if it applied to all the work of all employees of railroads engage......
  • Holliday v. Merchants' & Miners' Transp. Co., 4512.
    • United States
    • Supreme Court of Georgia
    • 27 Febrero 1926
    ...etc., Co., 90 Neb. 470, 133 N.W. 878; St. Louis, etc., Ry. Co. v. Davis (Tex. Civ. App.) 262 S.W. 923; Easter v. Virginian Ry. Co., 76 W.Va. 383, 86 S.E. 37; Taylor v. Bush, etc., Co., 6 Pennewill (22 Del.) 306, 66 A. 884, 12 L.R.A. (N. S.) 853; Salabrin v. Ann Arbor R. Co., 194 Mich. 458, ......
  • Request a trial to view additional results
31 cases
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • 30 Marzo 1925
    ...L.Ed. 777; Erie Railroad Company v. Winfield, 244 U.S. 170, 61 L.Ed. 1057; Easter v. Virginian R. R. Co., 76 W. V. 383, 11 N.C. C. A. 101, 86 S.E. 37; Czary case, 253 U.S. 86, 64 L.Ed. 794. The most that appellee could claim for himself under the circumstances shown by this record was that ......
  • Holliday v. Merch.S' & Miners' Transp. Co, (No. 4512.)
    • United States
    • Supreme Court of Georgia
    • 27 Febrero 1926
    ...etc., Co., 90 Neb. 470, 133 N. W. 878; St. Louis, etc., Ry. Co. v. Davis (Tex. Civ. App.) 262 S. W. 923; Easter v. Virginian Ry. Co., 76 W. Va. 383, 86 S. E. 37; Taylor v. Bush, etc., Co., 6 Pennewill (22 Del.) 306, 66 A. 884, 12 L. R. A. (N. S.) 853; Salabrin v. Ann Arbor R. Co., 194 Mich.......
  • Milburn v. Chicago, M., St. P. & P. R. Co., No. 30285.
    • United States
    • Missouri Supreme Court
    • 3 Septiembre 1932
    ...see, also, 36 A. L. R. 906 (annotation); Missouri, K. & T. R. Co. v. Rentz (Tex. Civ. App.) 162 S. W. 959; Easter v. Virginian R. Co., 76 W. Va. 383, 86 S. E. It would, of course, be much easier to administer the federal act if it applied to all the work of all employees of railroads engage......
  • Holliday v. Merchants' & Miners' Transp. Co., 4512.
    • United States
    • Supreme Court of Georgia
    • 27 Febrero 1926
    ...etc., Co., 90 Neb. 470, 133 N.W. 878; St. Louis, etc., Ry. Co. v. Davis (Tex. Civ. App.) 262 S.W. 923; Easter v. Virginian Ry. Co., 76 W.Va. 383, 86 S.E. 37; Taylor v. Bush, etc., Co., 6 Pennewill (22 Del.) 306, 66 A. 884, 12 L.R.A. (N. S.) 853; Salabrin v. Ann Arbor R. Co., 194 Mich. 458, ......
  • Request a trial to view additional results

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