Mccoy v. Norfolk & C R. Co
| Decision Date | 17 January 1901 |
| Citation | 37 S.E. 788,99 Va. 132 |
| Court | Virginia Supreme Court |
| Parties | McCOY. v. NORFOLK & C R. CO. |
MASTER AND SERVANT—SEPARATE COUNTS— DEMURRER — HARMLESS ERROR — NEGLIGENCE OF MASTER — PROXIMATE CAUSE — NEGLIGENCE OF FELLOW SERVANT — INSTRUCTIONS.
1. Where the second and third counts in a petition were but a restatement of the first m greater particularity, and any evidence admissible under them was admissible under the first, error in sustaining a demurrer to such counts was harmless.
2. In an action by a brakeman against a railroad company for injuries, an instruction that, if the negligence of a fellow servant in signaling the engineer to back the train concurred with the negligence of defendant in failing to maintain safe and sound couplings, in producing plaintiff's injury, the concurring negligence of the fellow servant did not affect the liability of the company, and it was liable for the injuries as though it only was at fault, was properly refused, since it allowed a recovery without showing that the master's negligence proximately contributed to the injury.
Error to law and chancery court of city of Norfolk.
Action by one McCoy against the Norfolk & Carolina Railroad Company. From a judgment in favor of defendant, plaintiff brings error. Affirmed.
C. J. Collins and Geo. Pilcher, for plaintiff In error.
D. Tucker Brooke, for defendant in error.
This action was brought by the plaintiff in error to recover damages for injuries received by him while in the service of the defendant company as a brake-man on one of its freight trains. The declaration contains three counts, each of which was demurred to. The court held the first count to be good, and sustained the demurrer to the other counts, which are substantially alike in all material respects, upon the ground that each of them showed upon its face that the act of a fellow servant was the proximate cause of the Injury complained of.
If it were conceded that these counts were good, and that the demurrer ought to have been overruled, we do not think that the plaintiff was prejudiced by the court's action. While the second and third counts set out more in detail some of the grounds relied on to show negligence on the part of the defendant company than is done in the first count, yet the averments of that count were clearly sufficient to entitle the plaintiff to offer in evidence any fact which was admissible under the second and third counts. This being so, the action of the court in sustaining the demurrer to those counts, if erroneous, must be regarded as harmless error. Childress' Adm'x v. Railway Co., 94 Va. 186, 26 S. E. 424; 6 Am. & Eng. Enc. PI. & Prac. 356.
The next and only other assignment of error is the court's refusal to give instructionsnumbered 4 and 5 offered by the plaintiff, and which are as follows:
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