Jackson v. Wheeling Terminal Ry. Co.

• Court: West Virginia Supreme Court
• Writing for the Court: POFFENBARGER, J.
• Citation: Jackson v. Wheeling Terminal Ry. Co., 65 W. Va. 415, 64 S. E. 450 (W. Va. 1909)
• Decision Date: 30 March 1909
• Parties: JACKSON v. WHEELING TERMINAL RY. CO. et al.

64 S.E. 450

65 W.Va. 415

JACKSON v. WHEELING TERMINAL RY. CO. et al.

Supreme Court of Appeals of West Virginia.

March 30, 1909

Submitted June 6, 1908.

Syllabus by the Court.

In adopting and using the standard railroad rules, generally observed in the operation of railroads, so far as they are applicable to its business, a railroad company sufficiently discharges the legal duty to protect its employés from injury by the promulgation and enforcement of rules for that purpose.

[Ed Note.-For other cases, see Master and Servant, Cent. Dig. § 285; Dec. Dig. § 142. ^[*]]

The necessity for such rules, and the character thereof, depend on the nature and extent of the master's business, and such of the approved rules as apply to classes of trains and railroad operations, not used in the business, may be discarded or ignored.

[Ed Note.-For other cases, see Master and Servant, Cent. Dig. § 285; Dec. Dig. § 142. ^[*]]

The measure of the master's duty to the servant, in respect to affirmative action for his safety depends upon the extent to which he is allowed opportunity, and has the means or power, for his own protection. As limitations are imposed upon him and his freedom restrained, his power of self-protection is diminished, and the master's duty increased. As limitations and restraints are removed, withheld, or relaxed, the servant's power of self-protection is enlarged, and the duty of the master correspondingly reduced.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 135; Dec. Dig. § 85. ^[*]]

In view of the duties imposed by the standard railroad rules upon train crews for their own protection, and that of their fellow servants, the provision in said rules for running two or more trains, one after another, in the same direction, over a single track, without giving the crews thereof telegraphic information of the relative positions of the trains, is reasonable, and not violative of duty.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 285; Dec. Dig. § 142. ^[*]]

A railroad company, operating only a small terminal railroad, is not bound to run scheduled or limited trains, nor to adopt or observe rules applicable to such trains. It may require all of its trains to run extra, and be kept under control in the sense that they may be instantly stopped to avoid collision or other causes of injury, and devolve upon the crews the duty of protecting themselves and one another by their diligence, caution, prudence, and the use of the signals prescribed by the standard rules.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 283; Dec. Dig. § 141. ^[*]]

The partial supersession of yard limit rules, by the adoption and use of certain orders inconsistent therewith, does not wholly dispense with them. They still apply in a modified form.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 288; Dec. Dig. § 145. ^[*]]

If a company, operating its road under yard or yard limit rules, forbids the running of trains over a certain portion of the road without orders, limiting them in respect to the time of starting, and requiring them to run extra, and such orders are issued, the trains receiving them are not thereby scheduled in respect to speed or time, nor their crews relieved from the duty of vigilance and self-protection; nor is it negligence to start two such trains in the same direction on a single track, in close proximity to one another, without advising the crew of each of the location of, and orders given to, the other.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 752; Dec. Dig. § 240. ^[*]]

If two trains, running under such orders, are passing through a tunnel, and the crew of the one following find the tunnel filled with smoke, so dense as to prevent them from ascertaining, by sight, whether there is a train ahead of them, and so close as to render it dangerous for them to proceed, the presence of the smoke is sufficient to put them upon inquiry, and it is their duty to stop, if necessary, and not to proceed until the track is clear; and, if they fail to do so, and injury to one of them results, no recovery therefor can he had, since the cause thereof is the negligence of the person injured and his co-servants.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 752; Dec. Dig. § 240. ^[*]]

If trains of one railroad company are run over the track of another, under the complete control of a servant of the latter, known as a "pilot," the crews of such trains are fellow servants of the crews operating the trains of the owner of such track.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 493; Dec. Dig. § 198. ^[*]]

A bill of exceptions is not open to the charge that it does not contain all the evidence adduced, if it purports to embody "the evidence" in the case, and the order of the court making it part of the record describes it as containing "all the evidence" introduced; such description being consistent with the terms of the bill, and presumed to rest upon knowledge, on the part of the court, derived from sources other than the bill of exceptions itself.

[Ed. Note.-For other cases, see Exceptions, Bill of Cent. Dig. § 13; Dec. Dig. § 13. ^[*]]

Error to Circuit Court, Ohio County.

Action by Charles G. Jackson against the Wheeling Terminal Railway Company and another. There was a verdict for plaintiff, which was set aside on motion, and he brings error. Affirmed.

Dovener & Fickeison and J. J. Coniff, for plaintiff in error.

J. B. Sommerville and H. M. Russell, for defendants in error.

POFFENBARGER J.

In an action for damages resulting from personal injury Charles G. Jackson obtained a verdict for the sum of $10,000 against the Wheeling Terminal Railway Company and the Baltimore & Ohio Railroad Company, in the circuit court of Ohio county, which was set aside on motion, and he obtained a writ of error to the judgment.

Objection to consideration of the case on its merits is based upon the contention that the evidence has not been made part of the record; it being urged that the bill of exceptions does not show that the evidence therein embraced is all that was adduced at the trial. The bill of exceptions does not use the word "all." In one place it says the plaintiff "asked the court to sign and seal his bill of exceptions, certifying all of the instructions and the evidence given during the trial of said cause, which is here accordingly done." Following this, there is a caption inserted reading as follows: "Transcript of Evidence in Case of Charles G. Jackson v. Wheeling Terminal Co. and B. & O. R. R. Co." Below this appears the style of the case, and a memorandum showing the names of the attorneys representing the parties. After this appears the following: "Be it remembered that on the trial of this cause, after the jury had been selected and sworn, as in the record is set forth, the following evidence was introduced by the plaintiff and the defendant, respectively." But the court, in the order which makes the bill of exceptions part of the record, says the plaintiff "presented to the court his bill of exceptions containing the instructions given in said cause, and all the evidence introduced in the trial in said cause." This recital, though in terms descriptive and susceptible of a construction, denying it the function of affirmation, is, it must be remembered, part of a solemn court order, possessing higher character than a pleading, and deemed to be true. We may summon to its aid the presumption that the court verified it by personal recollection, the notes taken during the trial, and the assent of the parties. It, in no sense, contradicts the bill itself. On the contrary, it accords with the terms thereof, saying it incorporates "the evidence" introduced, and literally importing completeness. Hall v. Hall, 12 W.Va. 1, invoked to sustain the position taken in the brief, is inapplicable, since it relates to a wholly different subject, namely, how far separate bills of exception can be read together, or used to sustain, or complete, one another.

The evidence proves, and tends to prove, the following material facts: The Wheeling Terminal Railway Company owns and operates a short terminal railroad, by means of which transfers of cars are made from railroad to railroad, and between the railroads and shippers in and around the city of Wheeling. Its road passes through a tunnel, under what is known as "Chapline Hill," 2,473 feet in length. It has its own engines, cars, crews, and officers including a superintendent and train dispatcher, and operates its road under the standard railway rules and regulations, so far as they are applicable; but, in view of the character of the road and the nature of the company's business, some of the rules are deemed inapplicable. Some time before the injury complained of occurred, an arrangement was made between the Wheeling Terminal Company and the Baltimore & Ohio Railroad Company, by which the latter was permitted to run its coal trains over the tracks of the former. Whether other railroads were allowed to do likewise as to any of their trains is not disclosed. After this arrangement had been made, certain railway rules, not previously observed, were put in force. Until that time it seems the terminal company's trains could enter the tunnel without a special order from the train dispatcher, but afterwards no train was permitted to do so. Before this change was made, only the rules applicable to yards and yard limits were observed. There was one exception under the new order of things. The La Belle Iron Works used exclusively one of the two tracks in the tunnel for storage of cars, and ran on it a small engine, popularly known as the "La Belle Buck," for...