Norfolk & W. R. Co v. Marpole

• Decision Date: 16 November 1899
• Citation: 97 Va. 594,34 S.E. 462
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. MARPOLE.

34 S.E. 462

97 Va. 594

NORFOLK & W. R. CO.

v.MARPOLE.

Supreme Court of Appeals of Virginia.

Nov. 16, 1899.

MASTER AND SERVANT—INJURIES TO SERVANT—EVIDENCE—INSTRUCTIONS —DAMAGES.

1. In an action for injuries to a brakeman it was not error to refuse to admit in evidence a rule of the railroad forbidding brakemen to ride on the engine, where a rule forbidding them to leave their posts of duty, or take any position on the train other than that assigned to them, had been admitted.

2. In an action by a brakeman for injuries caused by a low covered bridge, it was error to charge that, though plaintiff might have known the existence of the bridge, and assumed the risk of being struck by it, yet he had the right to recover, if, owing to the escape of steam from the engine, or darkness, or fog at the time of the accident, he could not, by ordinary care, discover his approach towards the bridge.

3. It was not error to refuse an instruction that a brakeman was guilty of negligence, if, when ordered to deliver a message to the engineer, he stayed from his post longer than necessary, where an instruction had been given that defendant was not liable for injuries received by the brakeman, owing to his being at a location on the train not within the scope of his duty.

4. In an action for personal injuries to a servant, mental as well as physical suffering may be taken into consideration in determining the damages to be allowed.

Appeal from circuit court, Page county.

Action for personal injuries by A. H. Mar-pole against the Norfolk & Western Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Jos. I. Doran, Geo. E. Sipe, and E. J. Armstrong, for plaintiff in error.

M. McCormick, for defendant in error.

CARDWELL, J. This is an action of trespass on the case brought by A. H. Marpole against the Norfolk & Western Railroad Company in the circuit court of Page county to recover damages for injuries alleged to have been sustained by the plaintiff, a brakeman in the employ of the defendant on a freight train, while in the discharge of his duty, and when passing an overhead bridge on the line of the defendant's railway near Luray, Va. The gravamen of plaintiff's complaint in his declaration is that the overhead bridge was too low to pass under it with safety while walking or standing on the top of the train, and that by reason of an unusual escape of steam from a defective engine drawing the train plaintiff was unable to see the bridge, or to locate himself by the surroundings, so as to know of the approach of the train to the bridge, and thereby to enable himself to guard against the dangers of passing under it.

There was a demurrer to the declaration, which was overruled, and upon the trial on the plea of not guilty a verdict and judgment was rendered for the plaintiff for $3,500, to which judgment a writ of error was awarded the defendant to this court.

In the oral argument here the defendant does not insist on its demurrer, but relies for a reversal of the judgment on its exceptions to the action of the circuit court in refusing to admit certain testimony offered by the defendant, and in the refusal to give instructions it asked, and in giving certain instructions by the court in lieu of those asked.

The first exception is to the refusal of the court to admit as evidence rule No. 116 of the book of rules governing employés of the defendant during the term of the service of the plaintiff.

It appears that the plaintiff had been in the service of the defendant for a period of over six years anterior to the injury complained of, passing and repassing by day and night the place where it occurred just before daylight on the morning of February 8, 1S97; that when within seven or eight miles of the bridge where he received the injury he was directed by the conductor of the train to remind the engineman that there was a ear to be dropped from the train at Luray, just beyond the bridge; and while returning to his post of duty on the train he was struck by the bridge. The object the defendant had in introducing rule 116, which forbids any one to ride on the engine, except the engineman and other designated employés, without the written order from the proper authority, was to show with it and other evidence that the plaintiff was not at his place of duty when injured, and in violation of the rules of the company, by reason of his unnecessary delay on the engine after delivering the message of the conductor to the engineman.

In the course of the trial the defendant's rule 697, forbidding brakemen to leave their post of duty, or take any position on the train other than that assigned to them, was admitted in evidence, and this rule conveyed to the jury and proved practically what rule 116 would have conveyed to them and proved had it been admitted. This being so, the error in refusing to permit rule 116 to go to the jury, if any (as to which we express no opinion), was harmless, and this assignment of error is unavailing. Taylor v. Mallory, 96 Va. 18, 30 S. E. 472.

Defendant's instruction No. 1, refused by the court, told the jury that, although the bridge in question was constructed too low to enable the plaintiff to pass under it standing on the top of the train, and although no signals had been placed to give him warning of his approach to it, yet if he had knowledge, or opportunity to acquire knowledge, of the condition of the bridge, and after such knowledge or experience he continued in the service of the company, he assumed all the risks pertaining to the employment.

In lieu of this instruction, the court gave the following:

"(2) The dangers and risks included in and incident to the employment, and of which the servant accepts the risks, are those which are made known to the servant, and which he should have known by observation in the course of his employment. If, therefore, plaintiff knew of the danger of the bridge at which he received the alleged injuries, or ought to have known of it, before the accident, and continued in the employment of defendant, he assumed the risk of the injury, and cannot recover, unless the jury further believe from the evidence that, owing to the circumstances existing at the time of the accident, h...