Fisher's Adm'r v. Chesapeake & O. Ry. Co

• Decision Date: 07 December 1905
• Citation: 104 Va. 635,52 S.E. 373
• Court: Virginia Supreme Court
• Parties: FISHER'S ADM'R . v. CHESAPEAKE & O. RY. CO.

52 S.E. 373

104 Va. 635

FISHER'S ADM'R .

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of Virginia.

Dec. 7, 1905.

1. Master and Servant—Injuries to Servant — Decree of Care Required — Safe Place to Work.

It is the duty of a master to exercise ordinary care to provide for the safety of his servant while engaged in the discharge of his duties, and to that end he must use ordinary care to furnish a reasonably safe place to work.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 173, 174, 179.]

2. Same—Ordinary Care.

Ordinary care is such care as reasonable and prudent men use under like circumstances in providing safe and suitable appliances and instrumentalities for the work to be done and in providing generally for the safety of the servant in the course of his employment; regard being had to the work and difficulties and dangers attending it.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 173, 174, 179.]

3. Same — Railroad Tracks — Adjoining Banks and Bluffs.

The duty of a railroad company to its servants employed on trains requires it to use ordinary care in guarding against obstructions caused by landslides and rocks falling from adjoining banks and bluffs.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 174, 179, 218, 224.]

4. Same—Questions fob Jury—Negligence of Master.

In an action against a railroad company for injury to its engineer, evidence considered, and held, that defendant's negligence should have been submitted to the jury.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1000, 1001.]

5. Same—Contributory Negligence.

In an action against a railroad company for injuries to an engineer, evidence considered, and held, that whether deceased was guilty of contributory negligence should have been submitted to the jury.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, 1089-1132.]

Error to Circuit Court, Bedford County.

Action by E. C. Fisher, administrator of George Fisher, deceased, against the Chesapeake & Ohio Railway Company. From a judgment for defendant, plaintiff brings error. Reversed.

Caskie & Coleman and F. T. Glasgow, for plaintiff in error.

Harrison & Long, for defendant in error.

WHITTLE, J. This action was brought by the plaintiff in error to recover damages for the death of his intestate, which is ascribed to the negligence of the defendant.

The case arose as follows: Fisher had been employed for many years by the defendant in the capacity of locomotive engineer on its passenger trains on the James River Division, a line of road extending from the city of Richmond, along James river, to Clifton Forge. The road was built by the predecessor in title of the defendant, the Richmond & Alleghany Railroad Company, in the year 1SS1, and was located principally upon the old towpath of the James River and Kanawha Canal.

For the distance of three-fourths of a mile, including the point at which the accident happened, in a westerly direction, the river is on the right-hand side of the track; while on the shore side there are a series of bluffs, with intervening ravines, rising abruptly from the water line in some places to the height of 200 feet, along the base of which the roadbed has been cut, and the face of which forms its southern side or wall.

The property was transferred to the present company in the year 1887, and has been since that time operated by it. In its operation the defendant exercises control over these bluffs, and keeps a watchman continuously on the beat in question, whose duty it is to keep a lookout for rocks, trees, and other obstructions likely to fall or wash upon the track, and remove them when practicable, or else flag approaching trains.

On Sunday, December 29, 1901, the regular west-bound passenger train having been delayed by an accident east of Lynchburg, the passengers and baggage were transferred to a special train, composed of an engine and tender, a combination baggage and express car, and a passenger coach. This special train left Lynchburg for Clifton Forge about 6 o'clock in the evening, two hours behind schedule time.

The watchman on the beat in question was returning from the western end of his course, and had proceeded about one-fourth of a mile eastward when he heard the train blow for Reusens, a station four miles west of Lynchburg and two miles east of the scene of the accident, and stepped off the track to allow it to pass him. While thus waiting, he heard a rock fall on the track towards the eastern end of the bluff, and hurried forward, waving his lantern across the track to stop the train.

The railroad approaches the bluff from the east on an 11° reverse curve, and at that point Fisher, in obedience to the rules of the company, reduced the speed of the train to "almost a stand-still, " and came around the curve very slowly; but on clearing it he observed a white light ahead, and, believing the track to be unobstructed, increased his speed to 15 miles an hour, which rate was maintained until the engine collided with a rock weighing about a ton, which had broken loose from the adjacent bluff and fallen upon the track between the rails. The rock was wedge-shaped, and the pilot "rode up on it" with all the wheels of the engine except the back drivers. An examination showed that the engine was not seriously damaged, but it was impossible to replace it on the track, and a messenger was dispatched to Reusens to telegraph to Lynchburg for assistance.

It had been raining continuously for several days, and the night was intensely dark. The passenger coach was crowded, and the trainmen and most of the male passengers assembled in the baggage and express car, where they remained for more than a half hour, awaiting assistance, smoking, and discussing the accident. At intervals, during that time, gravel and rock were falling from the bluff above, and it was suggested that it would be safer for the passenger coach to be pushed back from under the bluff. Accordingly, with the assistance of the passengers, the coach containing the women and children was shoved back some 65 feet. Thereupon the conductor requested the passengers to aid in removing the baggage and express car also; and while the express messenger was engaged in uncoupling the car for that purpose, a large quantity of rock and earth fell from the side of the bluff upon and against the car, casting several men into the river, part of the mass falling upon Fisher and the express messenger, and held them fast, despite the efforts of their companions to release them, until they were overwhelmed and killed by another mass of matter which shortly thereafter came down upon them.

The trial court sustained a demurrer to the evidence and rendered judgment for the defendant; and the plaintiff brings error.

The defendant denies liability for the death of plaintiff's intestate on the grounds that the evidence fails to show actionable negligence on its part, and also that it establishes such contributory negligence on the part of Fisher as would defeat a recovery, even if the initial negligence of the railroad company had been proved.

The relation of the parties being that of master and servant, the law imposed upon the defendant the duty of exercising ordinary care to provide for the safety of its servant while engaged in the discharge of his duties, and to that end required the use of ordinary care on the part of the company to furnish him a reasonably safe place in which to work.

Ordinary care is denned to be "such care as reasonable and prudent men use under like circumstances, in providing safe and suitable appliances and instrumentalities for the work to be done, and in providing generally for the safety of...