Lloyd v. Norfolk &

• Decision Date: 15 November 1928
• Citation: 145 S.E. 372
• Court: Virginia Supreme Court
• Parties: LLOYD. v. NORFOLK &, W. RY. CO.

145 S.E. 372

LLOYD.

v.NORFOLK &, W. RY. CO.

Supreme Court of Appeals of Virginia,

Nov. 15, 1928.

Error to Circuit Court, Clarke County.

Action by Grover C. Lloyd against the Norfolk & Western Railway Company. Verdict for plaintiff was set aside, and judgment entered for defendant, and plaintiff brings error. Affirmed.

Joseph F. Moore, of Berryville, and T. Russell Gather, of Winchester, for plaintiff in error.

W. T. Lewis, of Berryville, and Aubrey G. Weaver, of Front Royal, for defendant in error.

CAMPBELL, J. This is an action by notice of motion, brought by Grover C. Lloyd to recover of the Norfolk & Western Railway Company damages for an alleged injury sustained while plaintiff was employed as a section hand by the defendant. There was a trial by a jury, which resulted in a verdict for the plaintiff in the sum of $10,000. Upon motion of the defendant the court set aside the verdict of the jury and entered judgment for the defendant, and to that judgment this writ of error was awarded.

The case, from the standpoint of the plaintiff, is set forth in the notice of motion, which alleges that the defendant is a common carrier by railroad, engaged in interstate and intrastate commerce through Clarke county; that on the 13th day of February, 1923, the plaintiff, under the orders and directions of the foreman of the defendant, was engaged in the repair and maintenance of the track and roadbed south of Boyce station, in said county, which work included the lifting of heavy railroad rails, and that the rails which had to be lifted were much too heavy for the four men who had to lift them; that four-men were grossly insufficient and inadequate to perform such work with reasonable safety, all of which was well known to the defendant and its foreman, who had control of the work directed by him, and that by the exercise of ordinary care he should have foreseen the risk and danger to which plaintiff was exposed in lifting and carrying the said rails without additional assistance; that it was the duty of the defendant to provide a competent foreman to direct the work being done, and to provide a sufficient number of men to perform the work with reason able safety, and that defendant failed to supply a competent foreman and a sufficient number of men; that plaintiff, without negligence on his part, in compliance with the orders of said foreman, and without sufficient assistance, undertook to lift and carry the rails aforesaid, and in doing so suffered great and irremediable damage to his back and to the nerves, muscles, bones, and joints of his body, by straining and spraining the same, and by the loosening and displacing the sacro-iliac joint of the right hip, from all of which he suffered great pain and was obliged to expend large sums of money; and that the proximate cause of the injury was the failure of the defendant to furnish a competent foreman and a sufficient number of men to do the work required.

In the petition the right to recover is put upon the following grounds: First, incompetency of the section foreman, Rogers; second, an insufficient number of men to do the required work; and, third, that the alleged injury resulted from an act performed by plaintiff while acting in an emergency caused by an approaching train.

The evidence may be thus summarized: Lloyd was employed as a section hand by the defendant under the supervision of H. E. Rogers, foreman. On the morning of February 13, 1923, he reported for work, and was assigned, along with three other workmen, to the immediate task of loading rails on a push ear or dirt truck, which was situated on the stop-in track, east of the main track a distance of about 60 feet. The rails had to be moved across the main track in order to load them upon the push car. The method employed to accomplish this was that Lloyd and Carper would take hold of a rail at one end with tongs or dogs, and Royston and Ritter would take hold of the other end in like manner. No effort was made to carry the rail; they would merely slide it across the rails of the main track, and than all would, by raising the ends, load it upon the push car. After moving several rails, Rogers, the foreman, went to the nearby railroad station, stating to the workmen before leaving: "Boys, we won't load any more rails until 28 passes." The workmen, however, continued to load the rails, and as they had the eighth and last rail lying across the main track, passenger train No. 28, which had to pass over the track where the rail was lying, blew for the station at Boyce. The intervening distance between the train and the rail upon the track when the whistle blew does not appear. Lloyd stated that the train was just "around the curve" from where he was working. When the whistle blew, Ritter, the man working opposite Royston, yelled, "My God, here comes 28." In his effort to assist in removing the rail, Lloyd claims that he suffered a separation of the right sacro-iliac joint, which was caused by "a sudden lift."

There is no averment in his notice of motion that the injury occurred while the plaintiff was acting in an emergency, nor that the same was caused by "a sudden lift." It is a familiar rule of law that a plaintiff can only recover upon the case made by the pleadings. The only grounds of recovery in the notice are incompetency of the foreman and an insufficient number of men to do the required work.

As to the first proposition, it is urged upon us that, while there is no positive proof that either Rogers, the foreman, or Ritter, the alleged acting foreman, at the time of the injury, were incompetent, it does appear that Rogers ordered four men to move rails 30 feet long and weighing 1, 100 pounds each, and left these men in charge of Ritter while he went to the station, knowing train 28 was about due, and that these circumstances indicate negligence of the grossest sort and warrant the jury in so finding.

We are unwilling to concur in this contention. The uncontradicted evidence is that Rogers had been section foreman for a period of 20 years, and, except for a strained conclusion, based upon an inference, was thoroughly competent in every respect. The only evidence tending to show that Ritter was the acting foreman at the time of the injury is the statement of Lloyd that, in the absence of Rogers, Ritter was the acting foreman. Though it appears that Lloyd was present, there is no denial of the statement of Rogers that he told the workmen to stop loading rails until train No. 28 passed. There is no evidence for the plaintiff that Rogers, on the morning in question, placed Ritter in charge while he went to the station. It does appear, however, from the evidence of Rogers, that he did not place Ritter in charge of the men. Even though it be conceded that Ritter was in charge of the men, and directed the further loading of the rails, it plainly appears that the orders of the superior were to cease work until train 28 had passed. When confronted with conflicting orders, it was 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.

We come now to a consideration of the question whether or not the alleged failure of the defendant to furnish a sufficient number of men to do the work was the proximate cause of the injury.

In Chesapeake & Ohio Ry. Co. v. Heath, 103. Va. 66, 48 S. E. 508, it is said:

"The party who affirms negligence must establish it by proof sufficient to satisfy reasonable and well-balanced minds. The evidence must show more than a probability of a negligent act. An inference cannot be drawn from a presumption, but must be founded upon some fact legally established. This court has repeatedly held that, when liability depends upon care lessness or fault of a person, or his agents, the right of recovery depends upon the same being shown by competent evidence, and it is incumbent upon such a plaintiff to furnish evidence to show how and why the accident occurred—some fact or facts by which it can be determined by the jury, and not be left entirely to conjecture, guess, or random judgment, upon mere supposition, without a single known fact."

The fact that plaintiff had lifted and loaded seven rails with the same assistance demonstrates that the work could be accomplished with safety by the force then employed. While it is true that the plaintiff testified that, at the time new rails were put in the main track, a large force of men was employed to lay them, and that he had never known of an instance where a force of four men was required to lift 33-foot rails, he does not state that four men could not with reasonable safety slide rails across the main track, and by lifting them, an end at a time, load the rails on a push car with safety. As far as the evidence shows, no one was required to lift the rails in order to place them in a position to be loaded. Furthermore, it was not necessary to lift the rail in question to remove it from the main track In time for the safe passage of train No. 28. All that was necessary to be done was to "switch" the rail around and "dump" it on the roadbed, all of which, according to the evidence, would have required only but a few seconds.

In Norfolk & P. B. Line v. White, 143 Va. 875, 129 S. E. 339, it is said:

"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, " and "on the argument before this court counsel state that the cause of injury was ordering four men to handle it when there should have been six. The four men had handled the car without mishap to the point where they were going to 'set it down, ' and as a matter of law from the facts proven it does not seem that a reasonably prudent person should have any reason to...