Norfolk & P. Belt Line R. Co v. White

• Decision Date: 28 May 1925
• Citation: 129 S.E. 339
• Court: Virginia Supreme Court
• Parties: NORFOLK & P. BELT LINE R. CO. v. WHITE.

129 S.E. 339

NORFOLK & P. BELT LINE R. CO.

v.WHITE.

Special Court of Appeals of Virginia.

May 28, 1925.

Rehearing Denied Oct. 1, 1925.

Action by Spriggs White against the Norfolk & Portsmouth Belt Line Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed, and judgment entered for defendant.

Thos. H. Willcox and Edward R. Willcox, both of Norfolk, for plaintiff in error.

Oast, Kelsey & Jett, of Norfolk, for defendant in error.

CHRISTIAN, J. The Norfolk & Portsmouth Belt Line Railroad Company was engaged to lay the ties and rails, upon a spur track adjacent to its main line for Swift & Co., which latter company had done the grading and over which the railroad company would render service to the owner. On the morning of September 20, 1922, White, with five other men under Foreman Quillan, went to this spur track, taking with them a flat car or hand car to assist them in their work by hauling ties and rails to the points on the main line opposite the place on the spur track where they were to be placed. When the gang of workmen arrived at the place where the work was to be done the ties were already upon the ground, so they proceeded forthwith to place them upon the road bed in the usual manner, six inches apart, for fastening the rails upon.

This work was completed, but the rails had not arrived, so the hand car was left upon the main line, and the two men were sent to work upon the switch, while White and three others were ordered to level up the main line. About 9 o'clock a. m. the car of rails arrived, and the hand car had to be removed from the track in order that the train might drop the rails along the side of the spur, to be fastened upon the already placed ties. Quillan ordered White and the three other men to move the hand car, and when they had gotten it midway the spur it fell or was dropped, and caught White's right foot and ankle under one of the wheels, painfully injuring him. White brought suit against the company, and the jury which tried the case found a verdict for the plaintiff for $1,000. The court refused to set aside the verdict, but entered up judgment thereon. The case is before this court uponwrit of error to the circuit court of the city of Norfolk for alleged errors, which will be considered in their order as set forth in its petition.

The plaintiff's notice of motion set forth that the defendant company was engaged in interstate commerce, and assigned two acts of negligence on the part of the defendant which proximately caused his injury as follows:

First. That, while moving the flat car or hand car, one of the members of his gang, then assisting in the work, carelessly, negligently, and without giving due and proper warning, let go his end of the car, thereby causing the same to fall upon the plaintiff's foot and ankle.

Second. Because the defendant failed to provide him a reasonably safe place to work, in that the cross-ties on the spur track or siding were loose, unfastened, and insecure, so that when the plaintiff stepped upon one of the ties it turned over, moved, or slipped, throwing him down and under the car, thus causing his injury.

After the evidence had been adduced, and before argument, the defendant asked the following instruction to cover the second ground of negligence set forth in the motion:

"If the jury believe from the evidence that the defendant company used ordinary care in preparing the roadway and in placing the ties where the plaintiff was working, it performed its duty to the plaintiff, and, even though thereafter he stumbled over one of the ties, which caused him to be injured by the car falling upon him, he cannot recover in this action."

This instruction was properly refused, as there was not a scintilla of evidence to show that the defendant had not placed the ties in the usual, proper, and customary manner of doing such work, and, as the burden of proving negligence was upon the plaintiff, it is plain that the plaintiff abandoned this count in his motion. Besides, in the instruction given for the plaintiff, while very general, but not objected to by the defendant, the court confined the plaintiffs right of recovery to the negligence of a fellow workman, or any officer or agent of the company.

The second error assigned is that there is no proof that the defendant was engaged in interstate commerce. It is true that the plaintiffs motion alleged that the defendant was engaged in interstate commerce, but this was surplusage, as sections 5791-5796 of the Virginia Code covering intrastate commerce and subsequent to the Federal Act (U. S. Comp. St. §§ S657-8665) are almost word for word the same. As said by the court in Shumaker v. A. O. L. R. R. Co., 125 Va. 393, 99 S. E. 739:

"It was not necessary to mention in the declaration under which of the acts the plaintiff sued. It was sufficient if the facts alleged brought the cause of action within the terms of either statute. Vickery v. New London, etc., R. Co., supra; Missouri, etc., R. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355,...