Jones v. Virginian Ry. Co.

• Decision Date: 15 September 1914
• Parties: JONES v. VIRGINIAN RY. CO.
• Court: West Virginia Supreme Court

83 S.E. 54

74 W.Va. 666

JONES v. VIRGINIAN RY. CO.

Supreme Court of Appeals of West Virginia.

September 15, 1914

Syllabus by the Court.

Knowing the dangers incident to railroad yards in the nighttime where cars are continuously in motion day and night, an employé who uses the yards in the course of his employment must constantly exercise sufficient care to insure his own personal safety, and not rely solely on signals by bell whistle, or light; and if injured while therein by the tender of a reversed engine, the presence of which he was at the time and place of impact anticipating, but who, when hit, was observing the approach of a train on another track, which he knew could not harm him, he cannot, because of his own negligence, recover for the injuries inflicted. Under such circumstances, the only duty the master owes his employé is to exercise reasonable care for his personal safety.

A railroad yard, where trains, cars, and engines are continuously in motion to and fro, day and night, on the interlacing tracks, is essentially a place of constant danger, of which employés are duly cognizant; and duty to themselves requires their unremittent care and prudence, when using the yard to observe such movements in order to avoid injury to themselves, and, if negligent, they cannot recover though no warning by bell or whistle or light be given of such movements.

If guilty of negligence directly contributing to his injury, a servant cannot recover from the master.

Employés engaged in switching cars and engines in railroad yards may reasonably assume that coemployés, familiar with dangers incident thereto, will, when using the yards for their own convenience, exercise necessary and reasonable diligence to protect themselves from such perils as may reasonably be expected therein.

The master owes no duty to warn employés--by bell, whistle, or light--of dangers in railroad yards, of the existence of which they are fully cognizant, as they owe themselves the duty of constant vigilance to avoid the perils incident to the use to which such yards are devoted.

One who engages in the performance of services, of the inherently dangerous character of which he is fully aware, assumes the risks ordinarily incident thereto, and, if negligent, cannot recover for injuries inflicted while so engaged.

The relation of master and servant is not dissolved by mere cessation of duties assigned, but continues such reasonable time thereafter as will afford the servant opportunity to reach a place of safety from perils of the employment.

Error to Circuit Court, Mercer County.

Action by P. Jones, administrator, against the Virginian Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

G. A. Wingfield, of Norfolk, and Brown, Jackson & Knight, of Charleston, for plaintiff in error.

Sanders & Crockett, of Bluefield, and John R. Pendleton, of Princeton, for defendant in error.

LYNCH J.

To a judgment in favor of plaintiff the defendant obtained a writ of error. James W. Jones, the plaintiff's son and intestate, was struck by the tender of a moving engine and killed in the yards of the defendant company. He was a brakeman on a coal train drawn by engine 434 from Page to Princeton, where it arrived between 3 and 4 o'clock a. m. January 23, 1912. At the west end of the yard the train crew, having served 16 consecutive hours, was necessarily relieved from further duty, and the yard crew took the train in charge, and, after placing the cars composing it upon one or more of the 14 interlacing tracks and connecting switches, as required by the rules of the company, shifted the engine onto the main line at the opposite end of the yard, in process of delivery to the roundhouse for inspection and repairs. While backing westward on the main line towards the roundhouse, in the usual manner and according to the customary procedure, the tender collided with and killed Jones and seriously injured Easter, also a brakeman and at the time of the injury Jones' companion. Jones and Easter left the train at the west end of the yard, but, as it passed, caught the caboose and rode on it until it reached its place of lodgment on the inner eighth track from the main line, when, having washed and changed their clothing, as was the custom, according to Easter, they started on foot across intervening tracks towards the main line and in the direction of the passenger depot. For 18 months both of them had been in defendant's employment, much of the time as brakemen. They knew the yards were necessarily dangerous; that they were in continuous use, day and night; that cars and engines were constantly in motion, shifting and switching incessantly on all parts of the large yard; that cuts of cars were to be found at different parts thereof, and that the custom was to disconnect the engines from the incoming coal trains in some part of the yard, shift them from track to track until they reached the main line, and thence to run over that line to the roundhouse. Their familiarity with these conditions, customs, and procedure is abundantly established by proof, if proof were necessary for that purpose. In fact, Easter admits he and Jones anticipated the appearance of the engine and tender on the main line at the time he and Jones reached it; for he says immediately before the collision they looked for the engine at that point, but did not see or hear it.

As a basis for recovery, the second count of the declaration, on the averments of which plaintiff seems to rely, avers defendant's duty required it to sound a bell or whistle and keep a light on the forward end of the advancing engine and tender, and that, as a result of its failure to observe these legal requirements, Jones was run over and killed. By defendant's demurrer and plea, we are directly confronted with the inquiry whether, under the circumstances of this case, a breach of the duty averred is, in the absence of statutory requirements, such negligence on the part of the defendant as will sustain the judgment complained of.

Repeatedly have this and other courts held that the duty imposed by statute to sound a bell or whistle when approaching a public crossing does not require a railroad company to give such warning elsewhere than at the places so designated, because they are not intended to afford protection to employés of the operating company, but to persons who of right may use the railroad tracks as parts of the public highway. "The statute (Code 1913, c. 54, § 61 [sec. 2971]), requiring a bell to be rung or a whistle to be blown at crossings, is designed for those passing over the track at such crossings, not for those using the track elsewhere for their convenience as a footpath." Spicer v. Railroad Co., 34 W.Va. 514, 12 S.E. 553, 11 L.R.A. 385. As stated in the opinion, Spicer was an employé, though perhaps not then engaged in the performance of the duties assigned to him. "Yet he was fully aware of the deadly and dangerous character of the yard wherein he was walking when hit and killed." The same holding is found in Huff v. Railroad Co., 48 W.Va. 45, 35 S.E. 866. Though in Melton v. Railroad Co., 64 W.Va. 168, 61 S.E. 39, the person injured was a trespasser, the court said:

"Signals or lights or watchmen are not required on a backing train elsewhere than at public crossings to warn trespassers using the track for their own convenience as a footpath."

A railroad yard, with numerous tracks connected by switches, is essentially a place of danger, even in the daytime. Therein trains and engines are in constant motion at all times during the day. Of the dangers incident to the use of the yards for railroad purposes, no one is better advised than the employés whose duty requires them to be in or about the yard, or to pass through or over it. They know the danger, and that their safety therein depends more upon their own watchful care and prudence than upon the blowing of a whistle, the sounding of a bell, or the presence of a light on or about any part of the car. And we find in Railroad Co. v. Belcher, 107 Va. 340, 58 S.E. 579:

"A railroad company does not owe to its employés engaged on its yards, over which engines are constantly moving, the duty of sounding whistles, ringing bells or keeping a constant lookout to warn them of dangers of which they already have knowledge. Such employés are exposed to more than ordinary peril, and should be on the alert and vigilant to guard against injuries from the movement of engines and cars always to be expected. Those in charge of switching engines on a yard have the right to assume that employés on the yard, who are familiar with the dangers of the place, will look out for themselves, and will not fail to leave a place of danger in time to avoid injury. There can be no recovery by an employé on a yard who negligently steps onto a track on which a switching engine and cars are moving in his direction, and who is there injured by the cars in consequence of inattention to his surroundings."

So in Pittard v. Railroad Co., 107 Va. 1, 57 S.E. 561, it is said:

"A railroad yard is a place of ceaseless activity, where cars are being shifted and engines moved, and those engaged therein are exposed to more than ordinary danger, and should be alert to guard against such dangers. The sounding of whistles and the ringing of bells at such places is not essential for the protection of employés, but would tend to increase the confusion. In the case at bar an employé was killed in a railroad yard, but the evidence fails to establish negligence on the part of the company."

Likewise in Railroad Co. v. Lee, 110 Va. 305, 66 S.E. 51, it is said:

"It is unnecessary to ring a bell, sound a whistle, or display a light in order to give employés on a

...