Mccreery's Adm'x v. Ohio River R. Co

• Decision Date: 17 March 1897
• Citation: 27 S.E. 327,43 W.Va. 110
• Parties: McCREERY'S ADM'X v. OHIO RIVER R. CO.
• Court: West Virginia Supreme Court

27 S.E. 327

43 W.Va. 110

McCREERY'S ADM'X

v.OHIO RIVER R. CO.

Supreme Court of Appeals of West Virginia.

March 17, 1897.

Injury to Employe—Contributory Negligence —Instructions.

When contributory negligence is relied on in defense of an action for wrongful injury or death, a hypothetical instruction directing a finding in favor of plaintiff, which omits any reference to the facts tending to establish contributory negligence, and entirely ignores such defense, is erroneous. Nor can such error be cured by other instructions given in behalf of either party.

(Syllabus by the Court.)

Error to circuit court, Cabell county.

Action by James McCreery's administratrix against the Ohio River Railroad Company. Judgment for $4,200 for plaintiff, and defendant brings error. Reversed.

H. P. Camden and Vinson & Thompson, for plaintiff in error.

Simms & Euslow, for defendant in error.

DENT, J. The facts are as follows: The plaintiff's intestate, James C. McCreery, for about two years prior to April, 1893, when the accident complained of in the declaration in this case occurred, had been in the employment of the Huntington & Big Sandy Railroad Company as passenger conductor. A short time prior to the accident which resulted in his death, the Ohio River Railroad Company leased the property and franchises of the Huntington & Big Sandy Railroad Company, and continued the said McCreery in his appointment as passenger conductor on what was known as the "Dummy train, " which ran between Guyandotte and Kenova. Between the two points above mentioned there is a bridge across Twelve Pole river. Some 50 or 60 feet north of this bridge there had been erected, by the contractors who constructed the bridge, a derrick, which had been used by them in raising stone during the construction of the abutments of the bridge. This derrick was not on the land of the defendant. The work on the bridge had been completed several months before the happening of the accident, and the derrick had been dismantled. On the evening before the accident occurred the derrick had been set up again and used by some one in loading some stone on cars belonging to the defendant. Half an hour before the wreck occurred, the section foreman of the petitioner passed by the derrick, and, seeing the rope attached thereto loose, had it fastened back. The train known as the "Dummy train" consists of a small engine and car, very similar to a street car, upon which McCreery had been conductor ever since the opening of the Huntington & Big Sandy Railroad. This car made at least seven round trips each day between Huntington and Kenova, passing the point of accident at least fourteen times each day. The rules of the company required that when McCreery was not engaged in collecting fares, he was to station himself in a conspicuous place on the rear of the train (if it should be running backwards), so as to keep a constant lookout, and avoid accidents. McCreery had control of this train, and could direct whether it should be run with the car in front or the engine in front. He had, however, been directed, whenever it was possible to do so, to run the train with the engine in front. The morning of the accident McCreery was running the train with the car in front. It was raining, and McCreery was inside the car. Upon the point as to whether he was keeping a lookout or not the evidence is conflicting. This derrick which caused the accident, and the chain or rope attached thereto, might have been seen by one standing on the front of the car from a point six or seven hundred feet north of the point of the accident in favorable weather. The accident happened as follows: The boom of the derrick swung around over the railroad track, and the hook depending therefrom caught the drawbar of the front car, jerked it from the track, and threw it down an embankment about 25 feet in height, smashing the car to pieces, and killing the conductor. One of the nonassignable duties of a railroad company towards its employes is that of providing a reasonably safe place in which to work; in short, to keep its track clear of unnecessary obstructions. Flannegan v. Railway Co., 40 W. Va. 436, 21 S. E. 1028; Robinson v. Railroad Co., 40 W. Va. 583, 21 S. E. 727. And the mere fact that the boom of this derrick was permitted to swing across the tracks, forming as it did a most deadly and unnecessary obstruction, furnishes ample grounds to sustain the inference of negligence, notwithstanding the evidence that the proper employe of the company had attempted to firmly secure the boom but a short time previous. The derrick was not an obstruction itself, for it was not even dangerous. But the negligence consisted in the insecurity of the boom, which could have been so easily avoided, either by dismantling it, or fastening it back in such condition that it could not have been swung loose by the force of the wind. It is true, it might have been loosened by some person.but such is not a probable inference, so far as the evidence discloses, which, however, was a question for the jury.

The only defense is contributory negligence, the defendant insisting that the accident could have been averted had the intestate properly discharged his duties. Ward's Adm'r v. Railway Co., 39 W. Va. 4G, 19 S. E. 389. The intestate was acting in the capacity of both conductor and flagman on the train, and receiving pay accordingly. His duty as flagman was, when the train was running backward under his directions, to keep a lookout, when not otherwise engaged, in front of the train, so as to notify the engineer of obstructions, and prevent accidents therefrom, not only for his own, but for the safety of others, and the property of the company. If this accident could have been avoided by the proper discharge on his part of this duty, then he ought not to recover, for the liabilities imposed on the company by the destruction of its property and damages occasioned to innocent passengers are already sufficient in amount, without adding thereto the life of the employe whose negligence is primarily responsible for the accident. To avoid...