Lloyd v. N. & W. Ry. Co.

• Citation: 151 Va. 409
• Parties: GROVER C. LLOYD v. NORFOLK AND WESTERN RAILWAY COMPANY.
• Decision Date: 15 November 1928
• Court: Supreme Court of Virginia

Page 409

151 Va. 409

GROVER C. LLOYD v. NORFOLK AND WESTERN RAILWAY COMPANY.

Supreme Court of Virginia, Richmond.

November 15, 1928.

Absent, Chichester, J.

1. PLEADING — Plaintiff must Recover on Case made by Pleadings — Case at Bar. — It is a familiar rule of law that a plaintiff can only recover upon a case made by the pleadings. The instant case was an action by a section hand against a railroad for injuries caused by lifting a heavy rail. The only grounds of recovery alleged in plaintiff's pleadings were incompetency of the foreman and an insufficient number of men to do the required work. There was no averment that the injury occurred while the plaintiff was acting in an emergency, nor that the same was caused by "a sudden lift."

Held: That the only questions at issue were incompetency of the foreman and an insufficient number of men to do the required work.

2. RAILROADS — Injury to Section Hand — Lifting Rails — Incompetency of Foreman — Case at Bar. — In the instant case, an action by a section hand against a railroad for injuries incurred while lifting rails, the incompetency of the section foreman was alleged as one of the grounds for recovery. While there was no positive proof that either the foreman or the alleged acting foreman at the time of the injury were incompetent, it did appear that the foreman ordered four men to move rails thirty feet long and weighing eleven hundred pounds each, and left these men while he went to the station, knowing that a train was about due, telling the men to stop loading rails until the train had passed. It was asserted that these circumstances indicated negligence of the grossest sort and warranted the jury in so finding. The evidence was that the foreman had been section foreman for twenty years and thoroughly competent. There was no evidence that he placed the alleged acting foreman in charge of the men but there was evidence to the contrary.

Held: That the jury were not warranted in finding for plaintiff on the ground of incompetency of the foreman.

3. MASTER AND SERVANT — Conflicting Orders to Employee — Employee should Rely on the Orders of a Superior — Assumption of Risk. — When confronted with conflicting orders, it is the duty of the employee to rely upon the orders of the superior, or else he will be held to have assumed the risk of the employment when he is in as good a position as his acting foreman for ascertaining and understanding the situation.

4. MASTER AND SERVANT — Section Hand Injured by Lifting Rail — Fact that Section Hand had Lifted other Rails with same Assistance — Case at Bar. — The instant case was an action by a section hand against a railroad for injuries caused by lifting a heavy rail. Plaintiff based his right to recover upon the alleged fact that the railroad had not supplied sufficient men to do the required work. Plaintiff had lifted and loaded seven rails with the same assistance.

Held: That this demonstrated that the work could be accomplished with safety with the force then employed.

5. MASTER AND SERVANT — Section Hand Injured by Lifting Rail — Evidence Held to Show that Section Hand was not Required to Lift Rails — Case at Bar. — The instant case was an action by a section hand for injuries incurred while lifting rails. Plaintiff based his action upon the alleged fact that the railroad did not supply sufficient hands to safely lift the rails. The evidence in the case showed that no one was required to lift the rails in order to place them in a position to be loaded. It was not necessary to lift the rail in question to remove it from the main track in time for the safe passage of a train. All that was necessary to be done was to "switch" the rail around and "dump" it on the roadbed.

Held: That the evidence did not sustain the allegation of defendant's negligence in failing to supply sufficient hands.

6. MASTER AND SERVANT — Negligence — Presumption of Negligence — Burden of Proof on Employee to Establish Negligence. — The fact of an accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the employee to establish that the employer has been guilty of negligence.

7. MASTER AND SERVANT — Assumption of Risk — Knowledge by Employee of Defective or Unsafe Character of Machinery, Appliances, Etc. — Section 162 of the Constitution of 1902. — Section 162 of the Constitution of 1902 provides that knowledge of a railroad employee of the defective or unsafe character of machinery, appliances, etc., shall be no defense in an action for an injury caused thereby.

Held: That section 162 of the Constitution of 1902 was not applicable to the instant case, an action by a section hand for injuries incurred while lifting a heavy rail, because no claim was asserted "of defective or unsafe ways, appliances or structures."

8. MASTER AND SERVANT — Assumption of Risk — Knowledge by Employee of Defective or Unsafe Character of Machinery, Appliances, Etc. — Section 162 of the Constitution of 1902 — Interstate Commerce. — Section 162 of the Constitution of 1902, providing that the knowledge by a railroad employee of the defective or unsafe character of any machinery, ways, appliances, etc., shall be no defense to an action for an injury caused thereby, is not applicable where it appears from the proof that plaintiff was engaged in interstate commerce, and from the pleadings that the case was brought under the Federal employer's liability act.

9. INTERSTATE COMMERCE — Railroad Engaged in Interstate Commerce — Case at Bar. — The instant case was an action under the Federal employer's liability act for injuries received by a section hand when lifting a rail. There was no question that the defendant railroad extended from Roanoke, Virginia, to Hagerstown, Maryland.

Held: That this brought the case under the provisions of the Federal employer's liability act (45 U.S.C.A., sections 51-59).

10. MASTER AND SERVANT — Assumption of Risk — Federal Employer's Liability Act. — The doctrine of the assumption of risk is maintainable under the Federal employer's liability act (45 U.S.C.A., sections 51-59).

11. MASTER AND SERVANT — Assumption of Risk — Statement of the Doctrine. — The doctrine of assumption of risks has reference to the risks that are naturally and ordinarily incident to the work which the servant undertakes, as well as the risks arising from the employer's negligence, the peril of which the servant assumes when he remains in the employ of the master after he knows, or should know, the danger to which he is exposed.

12. MASTER AND SERVANT — Assumption of Risk — Railroad Section Hand Injured when Lifting a Rail from in Front of Approaching Train — Case at Bar. — In the instant case plaintiff, a section hand, brought his action against defendant railroad for injuries received in lifting a rail from the track. Plaintiff had been in the service of the railroad company for three years. Plaintiff based his right to recover on the incompetency of the section foreman, the insufficiency of the number of men to do the required work, and upon the fact that the alleged injury resulted from an act performed by plaintiff while acting in an emergency caused by an approaching train. He was a man of splendid physique and mentally all right. Plaintiff probably had as much knowledge as the foreman of the proper method of doing the work. He was aware of the train schedules, and had been ordered to desist from loading rails until the passing of the train in question.

Held: That under these circumstances plaintiff assumed the risks of the employment.

13. MASTER AND SERVANT — Assumption of Risk — Doctrine Firmly Established in Virginia. — The doctrine of assumption of risk has been firmly established in Virginia.

14. MASTER AND SERVANT — Assumption of Risk — Master Furnishing Insufficient Number of Men to do the Work in Question. — Where a servant knows or ought to know that the master has furnished too few servants for the reasonably safe prosecution of the work, he assumes the risk incident to the working with insufficient assistance.

15. MASTER AND SERVANT — Assumption of Risk — Employee in as Good Position as Employer for Understanding the Situation. — Ultimately, the question becomes one of comparative knowledge; if an employee is in as good a position as his employer for ascertaining and understanding the situation, and equally well knows and appreciates the conditions, he cannot be allowed to complain for injuries sustained by working therein.

16. MASTER AND SERVANT — Assumption of Risk — Negligence of Master — Open and Obvious Dangers. — As a general rule an employee does not assume risks arising out of the negligence of the master, but when the rule is thus stated, it has reference to the ordinary risks of the business, and there is nothing better settled than that where the danger is open and obvious and the servant continues to work with knowledge of the danger, he assumes the risk, whether it be a risk ordinarily incident to the business or not, and whether it be due or not to the master's want of reasonable care as an original proposition.

17. MASTER AND SERVANT — Assumption of Risk — Contributory Negligence — Matters of Contract or Conduct. — Assumption of risk is a matter of contract, but contributory negligence is a matter of conduct.

18. MASTER AND SERVANT — Assumption of Risk — Lifting Cases. — The general rule is that an employee who injures himself by overlifting or overstraining or overexerting himself in handling weights, or other heavy bodies, though it be in the line of his employment, cannot hold the master for injuries which result from such overstraining, and this because he is a much better judge of his own strength, in fact, is the sole judge of his own strength. This, though the work is attempted under the direction of the master. The risk of injury of this character is assumed by the servants.

19. MASTER AND SERVANT — Assumption of Risk — Question of Law...