Norfolk & W. R. Co v. Mcdonald's Adm'r

• Decision Date: 10 September 1891
• Citation: 13 S.E. 706,88 Va. 352
• Court: Virginia Supreme Court
• Parties: Norfolk & W. R. Co. v. McDonald's Adm'r.

13 S.E. 706

88 Va. 352

Norfolk & W. R. Co.

v.McDonald's Adm'r.

Supreme Court of Appeals of Virginia.

Sept. 10, 1891.

Master and Servant—Assumption of Risk— Contributory Negligence.

1. A brakeman, who enters into the employ of a railroad company owning cars, the couplings of which are mismatched, and who continues to use such couplings for over a year without any promise by the company to change them, assumes the extra hazard incident to the use of the mismatched couplings; and no recovery can be had from the company for his death resulting from their use.

2. A railroad brakeman, who, in coupling cars, with knowledge that the couplings are mismatched, places the pin in the moving car, and remaius between the two cars to shake the pin into position, when he might have safely made the coupling by placing the pin in the standing car and permitting it to be shaken into position by the concussion of the two cars, is guilty of negligence, and no recovery can be had for his death resulting from being crushed between the two cars.

Error to circuit court, Pulaski county; D. W. Bolen, Judge.

Action by Robert M. Chumbly, administrator of Charles O. McDonald, deceased, against the Norfolk & Western Railroad Company, for the death of plaintiff's intestate. There was a judgment for plaintiff, and defendant bringserror. Reversed.

Phlegar & Johnson and Moore & Brown, for plaintiff in error.

Mr. Wysor, for defendant in error.

Lewis, P. This was an action of trespass on the case, wherein Robert M. Chumbly, administrator of Charles O. McDonald, deceased, was plaintiff, and the Norfolk & Western Railroad Company was defendant. The action was brought to recover damages for the alleged negligent killing of the plaintiff's intestate while coupling cars as a brakeman on a passenger train in the defendant's employ. The charge in the declaration was that the defendant company, at the time the deceased entered its service, was using self-coupling cars, and that the continued use of such cars was contemplated in the contract of service, but that the defendant violated its contract in this particular, and, at the time the deceased was killed, was using mismatched couplings, which, although apparently self-coupling and safe, were, in fact, not so, in consequence of which the deceased was killed. There was a verdict for the plaintiff for $10,000 da mages, which the defendant moved the court to set aside, as being contrary to the law and the evidence; but the motion was overruled by the judgment complained of.

The case is a simple one, and may be briefly disposed of. It belongs to a numerous class of cases, that of late years have come to this court, involving the correlative duties of master and servant, and as to which the law, so far us a case like the present is concerned, is too well settled and familiar to require a citation of the authorities in this opinion....