Harness v. Baltimore

• Decision Date: 27 April 1920
• Court: West Virginia Supreme Court
• Parties: Mary R. Harness, Adm'x. v. Baltimore & Opiio RailroadCompany et al.

86 W.Va. 284

Mary R. Harness, Adm'x.

v.Baltimore & Opiio Railroad Company et al.

Supreme Court of Appeals of West Virginia.

Submitted April 14, 1920.

Decided April 27, 1920.

1. Master and Servant Under Federal Act Negligence Cannot be Presumed.

Under the federal Employers' Liability Act the negligence of a defendant railroad company cannot be presumed, but must be established affirmatively by the plaintiff, (p. 289).

2 Courts Under Federal Act, Federal Court Decisions Control Negligence as Question for Jury and, Applicability of Assumption of Risk.

In a proceeding instituted under that act, questions relating to the sufficiency of evidence of negligence to require submission of the case to the jury, and the applicability of the defense of assumption of risk, must be determined by appropriate common law principles, as interpreted and applied by federal courts. (p. 289).

3. Master and Servant Railroad's Negligence as to Employees Boarding Moving Trains Held Question for Jury.

Where there is evidence to show the long contimied existence of a custom or usage among railroad employees at a definite point on its line to board and ride moving freight trains to a neighboring town, and that the practice was of such notoriety and continuity that defendant's managing agents and officers must have known of it, and there is in evidence no rule or order of the company prohibiting its employees from using such means of transportation, and reasonably enforced, the questions whether the defendant owed the duty to use due care in the operation of its trains through such station so as to avoid unreasonable or extraordinary risks which might endanger the life and safety of an employee lawfully on its property at that point and bent on mounting the train in accordance with the recognized custom, and whether, if such duty existed, it was breached by a sudden jerk or bump which threw such employee under the train as he was in the act of boarding it, are for jury determination, (p. 290).

4. Same Railroad Employe's Right to Board Moving Train At-cording to Custom Held Question for Jury.

Where there is evidence to show that such employee, though not actively engaged at work at the point on defendant's line where the injury occurred, was acting under the positive instructions of his superior officers to return home from his work in another town "on the first thing we could get in on," and had come to such intermediate station on a helper engine expecting to continue the journey home on the first yard engine, freight or passenger train going in that direction, the question whether he was lawfully on defendant's property at that intermediate point so as to avail himself of the custom above mentioned, or should have remained at the station where he was relieved from active duty and where he could have boarded standing trains instead of moving trains, as was generally necessary at the intermediate point, is also one for jury determination, (p. 290).

5. Same Federal Act Abolishes Assumption of Risk Only Where Carrier Violates the Law.

The Employers' Liability Act does not abolish the defense of assumption of risk except in cases involving violation by the carrier of a federal statute enacted for the safety of employees. In all other respects the doctrine applies as at common law. (p..290).

6. Same Assumption of Risk Defined.

An employee assumes those risks and dangers which are ordinarily incident to the employment in which he voluntarily engages, but he does not assume extraordinary risks incident thereto, or risks due to the negligence of his employer or of those for whose conduct the employer is responsible, until he becomes aware of such negligent act, defect or disrepair, and of the risk arising therefrom, or unless the danger is so obvious that an ordinarily prudent person, under similar circumstances, would have observed and appreciated it. (p. 292).

7. Same When Employe May Assume Proper Care as to Reason-ably Safe Place and Methods for Wort. '

Where an employee is without knowledge of such unusual risks, and not chargeable with notice thereof because of their obvious nature, he is under no duty to anticipate and take precautions to discover them, but has the right, to assume that the employer has exercised proper care in providing a reasonably safe place and a reasonably safe system or method in and under which to work. (p. 292).

8. Same Employe Riding on Freight Train Does Not Assume Risk of Extraordinary Jerks, and What is Extraordinary is for the Jury.

An employee lawfully boarding a freight, train at a proper place has the right to assume that he will not be subjected to jerks of extraordinary violence, where they are so sudden, unexpected and unusual as not to be obvious; and whether a particular jerk is one ordinarily accompanying the movement of freight trains, or extraordinary and unusual, generally is a question for the jury to determine, (p. 295).

9. Champerty and Maintenance Stra7iger to Alleged Champer-tous Contract Cannot Take Advantage of it.

It is error to admit testimony introduced by defendant respecting the alleged champertous nature of the contract of employment between plaintiff and his attorney. Strangers to such a contract cannot take advantage of it; only a party can do so. (p. 295).

Error to Circuit Court. Mineral County,

Action by Mary R. Harness, administratrix, against the Baltimore & Ohio Railroad Company and Walker D. Hines, Director General of Railroads. Defendant railroad dismissed on its plea and motion and judgment for defendant Hines on a directed verdict, and plaintiff brings error.

Reversed and remanded.

Harry G. Fisher, for plaintiff in error

Emory Tyler and Wm. G. Conley, for defendant in error.

Lynch, Judge:

To recover damages for the death of her husband, Charles E. Harness, caused, according to the averment of the declaration, by the negligence of the defendants, Baltimore & Ohio Railroad Company and Walker I). ITines, Director General of Railroads, the plaintiff, widow and administratrix of decedent, brought this action, and at the trial the jury at the direction of the court found for the defendant Hines, the railroad company having, in the meantime, been dismissed from the action on its plea and motion. Plaintiff has brought the ease here for review, and has assigned numerous errors, many of which need only passing notice because of their incidental and inconclusive character. The only important and decisive matter is involved in the solution of the question whether the evidence introduced at the trial was of such character and effect as required submission to the usual triers of fact in cases of this sort without judicial interference.

The duty assigned to the deceased and his colaborers, 0. L. and O. B. B'oseley, brothers, and C. J. Hollen, was the inspection of Baltimore & Ohio freight cars at Bond, Maryland, about eight miles west of Piedmont where Harness was killed, and twelve miles west of Keyser where he, the Boseleys and Hollen resided, Piedmont and Keyser being in West Virginia. On account of the lack of suitable or any accommodations at Bond it was necessary for each of the employees to go daily from Keyser to Bond and return in the performance of the inspection work required of them, and to meet this situation and facilitate the work defendants, acting through their agents and employees, especially Burke, foreman of inspectors, provided free transportation for them over the company's railroad, no train being specifically designated for that purpose. The service so assigned and performed covered, it seems, for the most part evening and night employment, owing probably to the exigencies of personal and freight transportation during the war period, within which Harness received the injury instantly resulting in his death.

The passenger trains available for use and frequently used by the inspectors were the west-bound accommodation train, which when on time passed through Keyser about midafternoon, and the east-bound accommodation due to arrive at Keyser at 11:11 o'clock, A. M., daily except Sundays. About half the time, however, the inspectors made the return trip from Bond on freight trains, and occasionally, the evidence shows not to exceed four times, rode to Piedmont on a helper engine and thence to Kej^ser by yard engine, freight or passenger train, whichever was most available. (Record pp. 40, 73). Evidence was offered, but refused, which, if introduced, would have proved or tended to prove the use by them of the Western Maryland Railroad train to complete the journey from Piedmont to Keyser on one of these occasions.

As the time of these employees necessarily covered the hours between the departure from and return to Keyser, that is, from midafternoon of one day till eleven o'clock the following morning, if they used the accommodation train and it was on time, and frequently it was not, the wages earned by them and paid exceeded what other employees serving defendants a fewer number of hours earned and received, and naturally enough caused complaint, not only by such other employees, but it seems also by officials of defendants. And as important in its bearing upon the merits of the case, the result of the dissatisfaction was an order or direction by Burke, in whose department and under whose control the inspectors worked, addressed to them personally, "to return on anything we could and get in as quick as we could," or, as some of the witnesses say, "to come in on the first thing we could get in on." Manifestly, this unqualified direction, if not an express command, inspired by defendants' superior officials, induced the inspectors to act with increased diligence in order to minimize the hours of service as far as possible under the circumstances, and in order to do so they rode from Bond to Keyser on freights about half the time instead of waiting for the east-bound passenger train. On the day on which Harness was killed they came on the helper engine as far as...