Norfolk & Portsmouth Traction Co v. Ellington's Adm'r.*

• Decision Date: 11 June 1908
• Citation: 61 S.E. 779,108 Va. 245
• Court: Virginia Supreme Court
• Parties: NORFOLK & PORTSMOUTH TRACTION CO. v. ELLINGTON'S ADM'R.*

108 Va. 245

61 S.E. 779

NORFOLK & PORTSMOUTH TRACTION CO.

v.ELLINGTON'S ADM'R.^*

Supreme Court of Appeals of Virginia.

June 11, 1908.

1. Master and Servant—Duty to Furnish Safe Appliances.

The law only imposes upon the master the duty of using ordinary care to provide the servant with reasonably safe and suitable appliances, and the right of selection among adequate and safe methods and instrumentalities rests wholly with the master, who is not required to furnish the newest and best appliances.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 171-174.]

2. Evidence — Opinion Evidence—Qualification of Expert.

A witness who had been a conductor and motorman on electric cars off and on for eight years, but had never had any experience in superintending the construction of cross-over trolleys, was not qualified to give an expert opinion as to whether a cross-over trolley would be a simple and inexpensive device for promoting the safety and convenience of an electric railway company and its employés at a certain point.

3. Master and Servant—Action for Death of Servant—Sufficiency of Evidence.

In an action for the death of a street railway employé, where a count of the declaration alleged that defendant company negligently failed to adopt and promulgate adequate rules for the protection of its employés in crossing a "latch, " and the only evidence on the subject was that of a witness for plaintiff that employés were instructed to look out, when using the "latch, " to see that there was nothing approaching, the count should have been withdrawn from the jury for lack of evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1010-1050.]

4. Statutes — Construction — Meaning of Words.

Statutes are presumed as a general rule to employ words in their popular sense, but, in construing the legislative intent, the whole statute should be considered, and the meaning ascertained from the history of the provision and the object in view.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 259, 266.]

5. Constitutional Law—Construction of Constitution—Decisions of Other States on Identical Provisions.

In interpreting a constitutional provision decisions of another state construing practically an identical provision are entitled to great weight.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 13, 17.]

6. Master and Servant—Doctrine of Fellow Servants — Street Railways — Constitutional Provisions—"Railroad Company."

Const. art. 12. § 162 (Code 1904, p. cclix), abolishing the doctrine of fellow servant so far as it affects the liability of the master for injuries to his servant, etc., as to every employé of a "railroad company, " etc., effects only railroads proper or commercial railroads, and does not apply to street car companies.

[Ed. Note.—For other definitions, see Words and Phrases, vol. 7, pp. 5908, 5909.]

Error to Circuit Court, Norfolk County.

Death action by John T. Ellington's administrator against the Norfolk & Portsmouth Traction Company. Judgment for plaintiff, and defendant brings error. Reversed, and remanded for a new trial.

The plaintiff in error seeks to reverse a judgment of the circuit court of Norfolk county in an action brought against it by the defendant in error to recover damages for the death of his intestate, John T. Ellington, a motorman on one of its electric cars.

The accident in which Ellington lost his life occurred about half past 11 o'clock on the night of August 21, 1906, and was the result of a collision between two of the company's cars in a suburb of the city of Norfolk, on a cross-over, or latch, connecting the company's double tracks with its car barn. Ellington's car, which he was attempting to convey from the western track across the eastern track to the car barn to be housed for the night, was run into by another car on the eastern track and derailed; the effect of the impact being that Ellington was thrown from his car to the ground and fatally injured.

The scene of the accident is well described in the petition for a writ of error as follows: "Church street, just outside of the corporate limits of the city of Norfolk, runs nearly north and south. At the point where the accident occurred on this street, the Norfolk & Portsmouth Traction Company has two tracks, the easternmost of which is used by cars going northwardly to the City Park, while the westernmost track is used by cars going southwardly toward Main street in Norfolk. * * * At a short distance south of C street, which runs east and west and comes into Church street, there is a cross over, or latch, connecting the two tracks with the car barn of the company, situated on the east side of Church street, a little north of C street."

There was no overhead trolley wire over the cross-over, and in order to effect a crossing, it is necessary to stop the car at a point south of the switch on the west track. The motorman then takes the controller handle off the controller on the northern end of the car, and transfers it to the controller on the southern end, while the conductor reverses the trolley; and, upon his giving the bell signal to go ahead, it becomes the duty of the motorman to put the car in motion at a sufficient rate of speed to carry it across the latch by its own momentum. When the trolley wheel leaves the overhead wire, the electric current is shut off, and the car passes over the latch in darkness.

Among other matters, which sufficiently appear from the opinion of the court, the case involves the determination of the question whether section 162, art. 12, Const. Va. (Code 1904, p. cclix), abolishes the fellow-servant doctrine among employés of street railway companies. The section is here inserted in full:

"The doctrine of fellow servant, so far as it affects the liability of the master for injuries to his servant resulting from the acts or omissions of any other servant or servants of the common master, is, to the extent hereinafter stated, abolished as to every employé of a railroad company, engaged in the physical construction, repair or maintenance of its roadway, track or any of the structures connected therewith, or in any work in or upon a car or engine standing upon a track, or in the physical operation of a train, car, engine, or switch, or in any service requiring his presence upon a train, car or engine: and every such employé shall have the same right to recover for every injury suffered by him from the acts or omissions of any other employé or employés of the common master, that a servant would have (at the time when this Constitution goes into effect), if such acts or omissions were those of the master himself in the performance of a nonassignable duty; provided, that the injury, so suffered by such railroad employé, result from the negligence of an officer, or agent, of the company of a higher grade of service than himself, or from that of a person, employéd by the company, having the right, or charged with the duty, to control or direct the general services or the immediate work of the party injured or the general services or the immediate work of the co-employé through, or by, whose act or omission he is injured; or that it results from the negligence of a co-employé engaged in another department of labor, or engaged upon, or in charge of, any car upon which, or upon the train of which it is a part, the injured employé is not at the time of receiving the injury, or whois in charge of any switch, signal point, or locomotive engine, or is charged with dispatching trains or transmitting telegraphic or telephonic orders therefor; and whether such negligence be in the performance of an assignable or nonassignable duty. The physical construction, repair or maintenance of the roadway, track or any of the structures connected therewith, and the physical construction, repair, maintenance, cleaning or operation of trains, cars or engines, shall be regarded as different departments of labor within the meaning of this section. Knowledge, by any such railroad employé injured, of the defective or unsafe character or condition of any machinery, ways, appliances or structures, shall be no defense to an action for injury caused thereby. When death, whether instantaneous or not, results to such an employé from any injury for which he could have recovered, under the above provisions, had death not occurred, then his legal or personal representative, surviving consort, and relatives (and any trustee, curator, committee or guardian of such consort or relatives) shall, respectively, have the same rights and remedies with respect thereto as if his death had been caused by the negligence of a co-employé while in the performance, as vice-principal, of a nonassignable duty of the master. Every contract or agreement, express or implied, made by an employé, to waive the benefit of this section, shall be null and void. This section shall not be construed to deprive any employé, or his legal or personal representatives, surviving consort or relatives (or any trustee, curator, committee or guardian of such consort or relatives), of any rights or remedies that he or they may have by the law of the land, at the time this Constitution goes into effect. Nothing contained in this section shall restrict the power of the General Assembly to further enlarge, for the above-named class of employés, the rights and remedies hereinbefore provided for, or to extend such rights and remedies to, or otherwise enlarge the present rights and remedies of, any other class, of employés of railroads or of employés of any person, firm or corporation."

H. W. Anderson and Williams & Tunstall, for plaintiff in error.

Smith, Moncure & Gordon and R. R. Hicks, for defendant in error.

WHITTLE, J. (after stating the facts as above). There are four counts in the declaration. The first count alleges that the defendant was guilty of negligence in not having an...