Easter v. Virginian Ry. Co.
| Decision Date | 01 June 1915 |
| Citation | 86 S.E. 37,76 W.Va. 383 |
| Parties | EASTER v. VIRGINIAN RY. CO. |
| Court | West Virginia Supreme Court |
Submitted May 6, 1915.
On Petition for Rehearing, September 7, 1915.
Syllabus by the Court.
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.
A declaration against a railroad company, in an action by one of its employés 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.
In all cases to which it is applicable, the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S Comp. St. 1913, §§ 8657-8665]), supersedes state statutes and the common law; and federal and state courts are given concurrent jurisdiction for its enforcement.
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.
When actionable negligence is shown, contributory negligence is no defense, but should be considered by the jury in mitigation of damages only.
Although a railroad company is under no duty to adopt rules requiring its employés engaged in shifting engines and cars upon its yards at night to give warning to other employés 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 employés 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 employé, passing over the yards at night, is struck and injured by a backing engine, on which a coemployé had neglected to place a light, the company cannot 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 case the failure to carry a light is the negligence of a fellow servant, and is actionable under the federal act.
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 employé 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.
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 case; 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 cannot be said, as matter of law, that an hour was unreasonable time.
The giving of an instruction presenting an abstract legal question is not necessarily cause for reversal.
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 $100, it is reversible error.
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.
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 employés from serving more than 16 hours out of 24, and, the 16 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 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 recovered 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 employés.
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 (84 S.E. 211). 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,...
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