Goshen Furnace Corp. v. Tolley's Adm'r

• Decision Date: 16 November 1922
• Citation: 114 S.E. 728
• Court: Virginia Supreme Court
• Parties: GOSHEN FURNACE CORPORATION. v. TOLLEY'S ADM'R.

114 S.E. 728

GOSHEN FURNACE CORPORATION.

v.TOLLEY'S ADM'R.

Supreme Court of Appeals of Virginia.

Nov. 16, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Volunteer.]

Error to Circuit Court, Rockbridge County.

Action by Clarence Tolley's administrator against the Goshen Furnace Corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

Harper & Goodman, of Lynchburg, for plaintiff in error.

Curry & Curry, of Staunton, and John Critcher, for defendant in error.

BURKS, J. This was an action to recover damages for the wrongful death of the plaintiff's intestate, in which there was a demurrer to the evidence by the defendant, which was overruled, and judgment entered for the plaintiff for the sum of $5,000, being the amount of damages assessed by the jury in their verdict. The overruling of the demurrer to the evidence is the error assigned.

The furnace company owned a large quantity of slag which it sold to the Standard Slag Company, and, as a part of the contract of sale, agreed to furnish a locomotive engine and crew to deliver empty cars to the slag company at the proper place for loading and to take out the cars when loaded, deliver them at the scales to be weighed, and then remove them to the siding of the Chesapeake & Ohio Railroad Company at Goshen to be transported. The slag company furnished its own servants to do the loading, and used a steam shovel for that purpose. On July 7. 1920, Clarence Tolley, a servant of the slag company, while assisting the crew of the shifting engine in making a flying switch, was run over by the ears being shifted and killed, and this action against the furnace company was brought to recover damages therefor. The plaintiff bases his right of recovery on two grounds: First, that his intestate was not a volunteer, but a third person, to whom the defendant owed the duty of ordinary care, and that he came to his death through the failure of the defendant to exercise that degree of care; and, second, if his intestate was a mere volunteer, he came to his death by the reckless and wanton conduct of the servants of the defendant after they discovered his position of danger.

As all inferences which a jury might fairly draw from the plaintiff's evidence must be drawn in his favor on a demurrer to the evidence, and if different inferences might be drawn therefrom, that most favorable to him must be drawn, it will be necessary, in stating the case, to point out what those inferences are. Tolley was a youth 17 years of age, but was under size, and might readily be taken for 14 or 15 years of age. He was, however, bright and intelligent, and fully competent to discharge the duties for which he was employed by the slag company, but wholly without experience in railroad work. On July 7, 1920, about 11:40 a. m., as the crew of the slag company started to dinner, the engine crew brought the engine in to take out two loaded cars, and Tolley stepped up on the step or running board at the rear of the tender with Miller, the conductor of the engine, and the engine with loaded cars backed out and prepared to make a flying switch so as to shunt the cars onto the siding leading to the scales. As they passed the switch the conductor said to Tolley, "You are going to cut the cars, " to which Tolley replied "Yes." The conductor got off at the switch to throw the switch after the engine had passed and thereby divert the loaded cars to the scales siding. There was a lever on the rear end of the tender and also one on the end of the car next thereto, and the cars could be uncoupled from the engine by lifting either of these levers. In order to accomplish the uncoupling, however, it was necessary, after the cars had been put in motion, to slow down sufficiently to take up the slack. When this was done one of the levers was raised and the uncoupling accomplished, and then the engine started off rapidly so as to run over the switch point a sufficient distance ahead of the cars to permit the switch to be opened and thus divert the cars to the siding. This is one of the most dangerous movements known to the operation of railroads, and, while frequently done, it is resorted to for the purpose of saving time, especially when expedition is necessary in the handling of cars. It usually takes two men to make a flying switch, one at the switch point to operate the switch, and the other on the train to uncouple or "cut" the cars. The danger in cutting the cars is such that it should not be undertaken by one without experience in that kind of work. On the day of the accident Tolley, having gotten on the running board of the tender at the steam shovel, rode out past the switch point, where the conductor said to him, "You are going to cut the ears, " and got off to operate the switch. The conductor gave the engineer the signal to move down, and Tolley, who was on the rear of the tender, halloed, "All right, " and the engineer speeded up and ran past the switch point. In some way not explained in the testimony, Tolley fell off the tender and was run over by the cars and received such serious injuries that he died therefrom in a few hours. The engineer, who was examined as a witness for the plaintiff, testified as to the dangerous character of the operation, and also to the fact that, if the person doing the "cutting" should use the lever on the car instead of that on the tender, he would be jerked off unless he let go the lever, and, of course, this would have to be done quickly. The conductor was asked what took place when they passed the crossover, and replied:

"When we shifted by the crossover, I stepped off the engine. He was standing on the footboard between the tender and the car, standing holding to the lever on the end of the car." (Italics supplied.)

The engineer also testified that he had not been warned that "there was an inexperienced boy back there to do that dangerous work, " and, if he had been, "I wouldn't have done it; I didn't know he never had done it, or I wouldn't have done it at all." He also testified that the boy "had been riding about a lot of times, but never made no flying switch." On the subject of the assistance rendered by the slag people to the engine crew, the engineer, amongst other things, testified to the following:

"Q. Did the slag people ever assist in handling or shifting cars about there?

"A. Sometimes they got on and helped us to make the shifts; got on and rode about on the cars."

Later, on cross-examination by counsel for the furnace company, the following questions and answers appear:

"Q. And if, as you say, the slag company's employees did sometimes ride on the engine, and helped to make a switch, it wasn't because they were necessary?

"A. They wanted to get it done, to get the cars in just a little quicker.

"Q. That would help them in their work?

"A. They could do the work quicker. They would do the shoveling before we got in there."

The conductor, who was called as a witness for the defendant, was asked, "Do you agree with Mr. Higgins that they did assistyou quite often?" to which he replied, "Yes." Further:

"As a matter of fact they did assist you sometimes? A. Just as I say. They set the tracks and they loaded the cars, so they wasn't long at the shovel."

This would seem to indicate congestion and need for expedition in moving the loaded cars. Although the engine crew, composed of the engineer, fireman, and conductor, could have done the work without assistance, and generally did it, a jury might fairly have inferred that the assistance rendered by the employees of the slag company to the engine crew was to expedite the work of the slag company and to advance its interests, and that such was the purpose of Tolley on the day of the accident. The fact that the engine crew could have done the work without assistance does not change the situation that what was done by the employees of the...