Linville v. Chesapeake

• Decision Date: 04 December 1934
• Docket Number: (No. 7969)
• Citation: 115 W.Va. 610
• Court: West Virginia Supreme Court
• Parties: Kin Linville v. Chesapeake & Ohio RailwayCompany»

115 W.Va. 610

Kin Linville

v. Chesapeake & Ohio RailwayCompany

(No. 7969)

Supreme Court of Appeals of West Virginia.

Submitted November 14, 1934.

Decided December4, 1934.

1. Negligence

When there is no material dispute in the evidence on the question of negligence, the question ordinarily is one of law for the court.

2. Master and Servant

The duties of the master require that he should exercise reasonable care for the safety of his servants. He is not required, however, to foresee and protect them from an accident which a reasonably prudent man would not have expected to happen; neither is he required to warn them of a danger which he does not perceive and should not reasonably have anticipated.

Error to Circuit Court, Lincoln County.

Action by Kin Linville against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.

Judgment reversed; verdict set aside; new trial awarded.

Fitzpatrick, Brown & Davis and C. W. Strickling, for plaintiff in error.

Lilly & Lilly and Jacob D. Smith, for defendant in error.

Hatcher, Judge:

Plaintiff was employed by defendant as section hand on one of its branch lines. He was injured in the discharge of his duties, and brought this action under the Federal Employers Liability Act to recover damages for his injury. From a verdict and judgment of $4,000.00 in his favor, defendant prosecutes error.

The accident occurred on December 15, 1932, when the ground was frozen. Four section men, including plaintiff, were cleaning brush, etc., off the right of way to facilitate mowing in the spring. The right of way.at the place of Injury sloped upward from 25° to 45°. On this slope, a log about thirty-five feet long and fifteen to twenty inches in diameter was lying at approximately a right angle to the roadbed, with its lower end eight or ten feet from the track. The section foreman instructed the men to move the log down the slope, cut it in two, and pile and burn it in the ditch beside the track. The men moved it a few feet and the lower end stuck in the ground. One of the plaintiff's fellow workmen then chopped it in two where it lay, while plaintiff cleared off brush nearby. When the log was severed, the lower half, in the language of the axeman, "dropped down on the ground * * * and it laid a little bit apart." The two halves of the log were undisturbed for about an hour or more, during which time they remained motionless. When the task of moving them was resumed, plaintiff's fellow workmen started sluing the upper part of the lower half of the log round, so it could be rolled down the hill. After it had been moved several feet, the foreman directed plaintiff to aid in that work. As he joined the other workmen, the upper half of the log, without being jostled, suddenly slid down the hill and caught him between it and the lower half, bruising both legs and breaking a small leg bone.

The defendant stipulated that it transported interstate commerce.

The defendant's main contentions are that cleaning off a right of way is not such work as the Federal Act contemplates; that the defendant was not primarily negligent; and that the plaintiff assumed the risk of the log slide.

It is generally recognized that cleaning the rights of way safens the operation of trains. Plass v. Ry. Co., 221 N. Y. 472, 117 N. E. 952. If so, that work facilitated interstate transportation. One Federal decision holds that the removal of refuse from near the track is as necessary as the repair of the track. Miller v. Rr. Co., 58 F. (2d) 635, 637. See generally our own case of McKee v. Ry. Co., 78 W. Va. 131, 133, 88 S. E. 616. It would seem that plaintiff's action is tenable under the Federal Act.

The Act does not confer a right of action for an injury in a case such as this, unless the master was negligent. Scott v. Ry. Co., 100 W. Va. 88, 130 S. E. 98; Seaboard v. Horton, 233 U. S. 492, 58 L. Ed. 1062. There is no dispute in the material facts; so the question of negligence is one of law. Ketterman v. Rr. Co., 48 W. Va. 606,. 37 S. E. 683.

This is not a case of danger which should have been appreciated by an experienced foreman alone, as plaintiff's brief assumes. The plaintiff was a mature adult of some twelve years experience in section work, and was familiar with the general duties involved in cleaning off the right of way. The situation presented no complications.

No special skill or special information was requisite to determine whether or not the position of the log was secure. Any adult of ordinary discretion should have comprehended all of the potentialities of the situation. So far as it appears from the evidence, the plaintiff and his fellow workmen were men of ordinary intelligence. This is not a case, like some of plaintiff's citations, where the plaintiff yielded an apprehension of danger to the judgment of his...