Hull v. Virginian Ry. Co.
| Decision Date | 21 March 1916 |
| Citation | 88 S.E. 1060,78 W.Va. 25 |
| Parties | HULL v. VIRGINIAN RY. CO. |
| Court | West Virginia Supreme Court |
Rehearing Denied June 2, 1916.
Syllabus by the Court.
In an action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]) for the negligent killing of a brakeman, the happening of a rear-end collision between a train standing on the main track and one in motion, on a dark and foggy night is not of itself sufficient to prove negligence on the part of the engineer of the moving train, although he knew another train was ahead of him, but did not know it had stopped, when the undisputed testimony of witnesses shows he was running not over 12 or 15 miles an hour, and was keeping a careful lookout and was not signaled to stop, and did not see the lights on the rear end of the standing train, on account of a short curve and the darkness and fogginess of the night until he was so close as to make it impossible to stop his engine in time to avoid the collision, he having a right under the rules of defendant company, to expect a signal in time to stop, in case the foremost train should stop on the main line.
It being the duty of the rear brakeman, under the rules of the company, when his train stops and is liable to be overtaken by another train, to go back along the track and protect it by certain signals, to be given or placed on the track, and the duty also of the conductor to see that he does so, when the train makes a regular stop, known to the conductor, the engineer is not required to signal the flagman to protect the train, in the absence of a rule or established custom among the trainmen requiring him to do so in such case.
Under the federal Employers' Liability Act, a carrier's liability depends on negligence, and the evidence must establish actionable negligence, with reasonable certainty before there can be a recovery. Negligence will not be inferred from proof of facts and circumstances which are just as consistent with due diligence as with some theory of negligence.
There is no liability on a railroad company for the death of an employé, caused wholly by his own negligence, or by mere accident.
A railroad company is not bound to provide walkways or guard rails on its bridges and trestles for the protection of its employés.
The doctrine of assumption of risk is not wholly abolished by the federal Employers' Liability Act. An employé of a railroad company, engaged in interstate commerce, assumes the ordinary hazards of the business in which he engages, not arising out of the company's negligence or the negligence of its officers or other employés.
The standard of care required of a railroad company in the construction and maintenance of its road, bridges, and trestles is such reasonable care and skill as is ordinarily employed in that respect by railroad companies in general.
Error to Circuit Court, Mercer County.
Action by Maude Hull, administratrix, etc., against the Virginian Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and judgment for defendant.
McNutt, Ellett & McNutt, of Princeton, Sanders, Crockett & Kee, of Bluefield, Brown, Jackson & Knight, of Charleston, and G. A. Wingfield, of Norfolk, Va., for plaintiff in error.
W. R. Bennett, of Fayetteville, and J. G. Challice, of Roanoke, Va., for defendant in error.
WILLIAMS, P.
Plaintiff, as administratrix of her deceased husband, brought this action under the federal Employers' Liability Act against the Virginian Railway Company to recover damages for his death, caused by its alleged negligence. The accident out of which this suit grew is the same as in the case of Culp v. Virginian Railway Co., 87 S.E. 187. The evidence in the two cases is very similar, and the principles of law applied there govern our decision here. Defendant is an interstate carrier and deceased, at the time of his death, was a brakeman employed on one of its trains engaged in interstate traffic. About 4 o'clock on the morning of September 1, 1912, a rear-end collision occurred at Hotchkiss station, between two special trains moving westward with empty cars for distribution to coal mines located along the main line of railroad. Both trains had taken the siding at a station called Maben, 3.7 miles east of Hotchkiss, pursuant to the train dispatcher's orders, to await the passing of an east-bound train. After that train had passed, the foremost west-bound train, designated as No. 455, pulled onto the main track and moved on westward, and in 5 or 6 minutes thereafter, according to the judgment of plaintiff's witnesses, the rear train, known as No. 500, followed it. Both were special trains, the movements of which are regulated by the dispatcher's orders, and not by regular schedule. The destination of No. 455 was Eccles, a station some distance west of Hotchkiss, but it had to drop some of its cars at Hotchkiss. This required it to stop and shift them into the proper place on the siding. When Mr. Spotts, the engineer, came to the switch at Hotchkiss he stopped his train, as was his custom when he carried cars to be dropped at that place, to allow the front brakeman to get off the engine, uncouple the cars and open the switch. When the train stopped the caboose was standing near the middle of a trestle or bridge, 184 feet long and 35 feet high. While the engineer and some of the crew were engaged in shifting onto a spur track the cars to be dropped and watering the engine, No. 500 crashed into the caboose, and shoved it forward off the bridge, demolishing it and overturning three or four cars. According to the testimony of all the witnesses who give any estimate of the time, it was 15 minutes between the stopping of No. 455 and the happening of the accident. Deceased was the rear brakeman and Harry Culp was conductor on No. 455. According to the undisputed testimony of witness W. E. Davis, who was a brakeman on the train and who says he was in the caboose with Hull and Culp, and therefore the last man to see either of them alive, Culp was in the cupola and Hull was standing on the floor of the caboose, just after the train had stopped. Witness then got out of the caboose and went forward to assist in the work of shifting cars.
No. 500 had no orders to stop at Hotchkiss, and was running at the rate of 12 or 15 miles an hour when it collided with No. 455. Signal lights were on the rear of the caboose, but it is proven they were not seen, and, on account of the darkness and fog, as well as because of a short curve in the track, just east of the bridge, could not have been seen in time to enable the engineer to stop before striking the caboose.
The acts of negligence averred are: (1) Failure of the engine crew of No. 500 to observe the markers or lights on the caboose; (2) their violation of rule 91, which forbade their following No. 455 in less time than ten minutes after it left Maben; (3) not providing a walkway and guard rails on the bridge, for the protection of trainmen; and (4) failure of the engineer on No. 455 to signal to the rear flagman to protect the rear of his train.
At the conclusion of plaintiff's testimony, on motion of defendant, the court directed the jury to return a verdict for it, which they accordingly did. The plaintiff then moved the court to set it aside and grant her a new trial for alleged errors committed during the trial, and the court took the motion under advisement, and at a later term sustained it, and set aside the verdict and awarded plaintiff a new trial. It is to that order this writ of error was awarded. Newly discovered evidence is not involved, and if there is no evidence on which the jury could have found defendant, or any of its officers or servants, guilty of negligence causing the death of plaintiff's intestate, the court did not err in directing a verdict to be returned for it, but did err in thereafter setting it aside and granting a new trial.
The right of recovery under the federal Employers' Liability Act depends upon negligence for which the carrier is made liable, and if deceased's death was the result of a mere accident, or was due solely to his own negligence, there can be no recovery. Culp v. Virginian Ry. Co., supra, and Easter v. Virginian Ry. Co., 86 S.E. 37.
The collision itself might seem to prove negligence on the part of some one or more of defendant's servants, who were in charge of one or the other of the colliding trains. But the circumstances do not definitely prove actionable negligence. The accident may have been due wholly to the negligence of deceased; or it may have been a pure accident, as we will endeavor to show a little later.
It is insisted that J. B. Thomas, engineer on No. 500, was negligent in not seeing the rear lights on the caboose of train No. 455, and in not slacking his speed when he approached Hotchkiss, so as to be able to stop his train in a short distance, in case the emergency arose. The engine crew according to the proof, were keeping as careful a lookout ahead as they could, consistently with their other duties of...
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