Norfolk & W. R. Co v. Nuckols' Adm'r.1

• Decision Date: 21 March 1895
• Citation: 91 Va. 193,21 S.E. 342
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. NUCKOLS' ADM'R.1

21 S.E. 342

91 Va. 193

NORFOLK & W. R. CO.

v.NUCKOLS' ADM'R.¹

Supreme Court of Appeals of Virginia.

March 21, 1895.

Injury to Employe — Negligence op Fellow Servant—Liability op Employer.

1.A person entering the service of another assumes all risks naturally incident to that employment, including the danger of injury by the fault or negligence of a fellow servant.

2.The above liability does not depend upon the fact that the servant injured may be in a different department of the service from the wrongdoer.The test is, were the departments so far separated from each other as to exclude the probability of contact, and of danger from the negligent performance of their duties by employes of the different departments.If they were so separated, then the servant is not to be deemed to have contracted with reference to the negligent performance of the duties of his fellow servant in such other department.

3.The liability of injury by a fellow servant, assumed by one entering another's service, does not depend upon gradations in employment, unless the superiority of the person causing the injury was such as to put him in the category of principal or vice principal.

4.It is the duty of an employer to furnish suitable and safe appliances, machinery, structure, and roadway.

5.It is the duty of an employer to exercise reasonable care to ascertain the character, habits, and fitness of his employes for the discharge of their duties, and, by proper supervision, to keep himself so informed.

6.Where injury to a servant has been caused by the default of a fellow servant, concurring with the negligence of the master, the latter is liable.

7.A track repairer and engineman, though in different departments, are, by the very nature of their employment, brought into frequent contact, and the risk of negligence by the one must therefore be considered to have been in contemplation of the other when he accepted service.

Error to corporation court of Buena Vista; J. O. Shepherd, Judge.

Action by George W. Nuckols' adminis-trator against the Norfolk & Western Railroad Company.Judgment for plaintiff, and defendant brings error.Reversed.

B. & E. M. Pendleton and W. H. Travers, for plaintiff in error.

Frank T. Glasgow and H. A. White, for defendant in error.

KEITH, P.This is a writ of error to a judgment in an action of trespass on the case brought in the corporation court of Buena Vista by the administrator of George W. Nuckols against the Norfolk & Western Railroad Company, to recover damages for the death of his intestate, alleged to have been occasioned by the negligence of the defendant company.It appears that George W. Nuckols was employed as a track hand by the defendant company, and, upon the morning of the accident which resulted in his death, was engaged, along with others, in placing a rail upon the track of the defendant company, in the city of Buena Vista, when he was struck by a passing engine drawing one of the trains of the defendant, and died in a short time from the injuries thus received.Without undertaking to review all of the evidence, it is sufficient to say that it is proved to our satisfaction that the accident was caused by the negligence of the engineman in charge of the engine.The only question which requires any particular consideration by this court is presented in the defendant's instruction No. 7, which the trial court refused to give, and which is in the following words: "The court instructs the jury that the deceased, Nuckols, assumed all the risks incident to his employment when he entered the service of the defendant, —among them, the injuries caused by the carelessness of fellow servants; and if they believe from the evidence that the death of the said Nuckols was caused by the negligence of the engineman of train No. 30, which inflicted said injury, such negligence cannot be imputed to the defendant, the said engineman and the said Nuckols being fellow servants in the service of the said company."

This brings up a subject upon which there has been endless diversity of opinion, upon which the courts of the several states have been divided, upon which the decisions of the same courts have not always been harmonious, and as to which it has seemed almost impossible to formulate a rule which will meet the exigencies of all cases, do justice to the employer and to the employe and promote the efficiency and safety of the railway service.One of the first cases in which the liability of the master to a servant for an Injury occasioned by the act of a fellow servant came under review by the courts was that of Farwell v. RailroadCo., 4 Mete.(Mass.) 49.Chief Justice Shaw delivered the judgment of the court, in a most luminous opinion, in which he says "that he who engages in the employment of another, for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption the compensation is adjusted accordingly.And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment.These are perils which the servant is as likely to know, and against which he can as effectually guard, as the master.They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any others."This view of the law has been accepted in very many of the states of this Union.It has recently been reviewed by the supreme court of the United States in Railroad Co. v. Hambly, 154 U. S. 349, 14 Sup. Ct. 9S3; and Mr. Justice Brown, in that case, says "that upon this subject the authorities are hopelessly divided; that it is useless to attempt an analysis of the cases which have arisen in the courts of the several states, since they are wholly irreconcilable in principle, and too numerous even to justify citation."He does, however, cite decisions from Massachusetts, New York, Michigan, Indiana, Maryland, Pennsylvania, and many other states, which recognize and follow Farwell v. Railroad Co., while he says that in Illinois, Missouri, Virginia, Ohio, and Kentucky the rule is apparently the other way.It appears that the supreme court itself has not been altogether free from the uncertainty which attends the consideration of this much-vexed subject, and that its decisions, while they have not been numerous, have not been "altogether harmonious."Railroad Co. v. Hambly, 154 U. S., at page 356, 14 Sup. Ct. 983.It may be well, therefore, for us to examine with some care into the principles upon which this rule is founded, and to consider the cases in this court in which it has been referred to, and endeavor to ascertain to what extent it has been accepted in this state.

Judge Shaw, in the case above cited from 4 Mete, rests the exemption of the employer from liability to its servant occasioned by the negligence of a fellow servant upon implied contract.The controlling reason of that decision is that a person entering the employment of another assumes all risks incident to that employment, including the danger of injury by the fault or negligence of a fellow servant.This proposition has been time and again asserted in this court The difficulty which has been experienced does not grow out of any doubt or dissatisfaction as to the soundness and wisdom of the proposition, but is found in its application to particular cases, in determining who are and who are not fellow servants, within the terms and meaning of the rule.

In the case of Donnelly's Adm'r v. Railroad Co., 88 Va. 853, 14 S. E. 692, —one ofthe most recent cases in which this court has dealt with the subject—Judge Lacy declares "that it is well settled that when a servant enters upon an employment he accepts the service subject to the risks that are incident to it"; and he cites with approval 7 Am. & Eng. Enc.Law, p. 821, where it is said "that the general rule resulting from considerations, as well of justice as of policy, is that he who engages in the employment of another, for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services.The perils arising from the carelessness and negligence of those who are in the same employment are not exceptions to this rule; and when a master uses due diligence in the selection of competent and trusty servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable to one of them for the injury received by him in consequence of the carelessness of another while both are engaged in the same service."It would seem, therefore, that the general doctrine is fully and broadly accepted by this court, for in the case last cited the court was unanimous.The case of Railroad Co. v. Hambly is very similar to the one under consideration.In that case a laborer in the employ of a railway company, who was engaged in work upon a culvert on the line of the company's road, was injured by the negligence of the conductor and engineer employed in moving a passing train.The supreme court held that he was a fellow servant with the engineer and conductor, and that the railroad company was exempt from liability for the injury so inflicted.In that case the negligence of the engineer and conductor were conceded, and it was not contended that the unfortunate victim of their negligence was at all in fault, yet the court held that he was not entitled to recover.In the case before usthe party injured was at work upon the track of the defendant company, making certain necessary changes.There is evidence to prove, and it may be conceded, that the injury he sustained was caused by the negligence of the engineman upon a passenger train, who, unmindful of his duty to observe and watch the track over which he was...