Kirk v. Virginian Ry. Co.

Decision Date13 March 1928
Docket Number6147.
CourtWest Virginia Supreme Court

Submitted March 7, 1928.

Syllabus by the Court.

Whether in an action under the Federal Employers' Liability Act (45 USCA §§ 51-59; U.S. Comp. St. §§ 8657-8665) an employee knows of and fully appreciates the extraordinary dangers resulting in his injuries and thereby assumes the risks thereby incurred, precluding recovery, is generally a question of fact for the jury.

Additional Syllabus by the Editorial Staff.

$30,000 for loss of left arm and breaking leg of 45 year old brakeman earning from $2,200 to $2,500 per year held not excessive.

Error to Circuit Court, Mercer County.

Action by J. E. Kirk against the Virginian Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Williams Loyall & Taylor, of Norfolk, Va., H. C. Ellett, of Princeton and Hall & Buford, of Roanoke, Va., for plaintiff in error.

W. Cody Fletcher and John R. Pendleton, both of Princeton, for defendant in error.


This is an action for personal injuries sustained by plaintiff while employed as a brakeman and while in the act of throwing a derail switch on a side track at the town of Narrows in Virginia on defendant's railway. There was a conditional verdict for plaintiff on defendant's demurrer to the evidence, of $45,000.00 from which the trial court, on motion of defendant to set it aside, and on terms of setting the same aside, required the plaintiff to remit $15,000.00, which was done; and the judgment complained of here was that the motion be overruled and that the demurrer be also overruled, and that plaintiff recover of defendant the sum of $30,000.00 with interest and costs.

The action was predicated on the Federal Employers' Liability Act of Congress (45 U.S. CA §§ 51-59; U.S. Comp. St. §§ 8657-8665) and the alleged negligence of the defendant and its employees resulting in the injuries sustained, those injuries being the cutting off of his left arm just below the elbow, the breaking of his leg, and other injuries from bruises and the consequent pain and suffering and loss of time sustained.

The acts of negligence alleged were, first, the failure of the defendant to employ competent and skillful employees, and, second, their failure to use proper and reasonable care in the movement, handling, operation and control of the electric motor and freight cars attached while plaintiff was working about the same movement in the discharging of his duties. The specific act of negligence alleged and relied on was that the engineer and fireman failed and neglected to observe the stop signals given by the conductor of the train when plaintiff was seen by the conductor in the act of running towards, and in an effort to get to, the derail switch and throw it in time to save the backing motor and coal cars attached from being wrecked or derailed, as it was his duty to do, which train consisted of the motor, one gondola and ten hopper cars loaded with coal, which coal cars were being set off on the side track at the point indicated.

The defendant interposed the defense of want of negligence on the part of its employees as alleged, and negligence and assumed risk on the part of the plaintiff in seeing and appreciating his dangers in going in front of the backing motor and cars and thereby voluntarily placing himself in the place of danger without having taken the precaution as he might and should have done, to himself signal the motormen and stop the movements of the train; to all which the plaintiff replies that in riding the side of the last car in the train as he was obliged to do, and in alighting in time to run ahead to throw the derail, he was not in a position where he could see the motormen or be seen by them in time to give the stop signals, but that when he alighted he saw the conductor giving the proper signal, and who could and did appreciate the necessity of guarding plaintiff against the dangerous operations of the train, and that he did and had the right to rely on the trainmen to discharge their duties.

To sustain their position on the facts, defendant's counsel emphasize the plaintiff's evidence relating to the point of time when he got to between twenty-five and thirty feet of the derail and crossed over, quartered over between the rails, and in which he says he did not look or listen to see if the cars were following him; but admitted that he could hear the slight noise they were making, but that it seemed to him that they were farther away, and that he did not turn around or look back to see how far away they actually were. They argue from this evidence that, though he was engaged with the other employees in the same operation, plaintiff could not assume that they would observe their duties but did not, and that he thereby assumed the risk of their not doing theirs, and therefore he is not entitled to a recovery.

It seems to us that the position of counsel for defendant is untenable and not supported by the authorities relied on. In Davis, Agent, v. Kennedy Administratrix, 266 U.S. 147, 47 S.Ct. 33, 69 L, Ed. 212, relied on, Kennedy was an engineer on train No. 4, and was killed in a collision with train No. 1 which had the...

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