Norfolk & W. R. Co v. Emmert

• Decision Date: 30 June 1887
• Citation: 83 Va. 640,3 S.E. 154
• Court: Virginia Supreme Court
• Parties: Norfolk & W. R. Co. v. Emmert.

3 S.E. 154

83 Va. 640

Norfolk & W. R. Co.

v.Emmert.

Supreme Court of Appeals of Virginia.

June 30, 1887.

Master and Servant—Servant's Duty to Know op Defect.

Where an employe of a railroad company, engaged in coupling cars, was injured by reason of the alleged defective condition of the bumper or draw-head, and the evidence showed that, shortly before the accident, he had uncoupled the same car, and that it was his duty to have known of the defect, if it existed, and to have reported it, and that it was his duty to observe the cars and the couplings so as to determine, before attempting to couple them, what kind of a link to use, and by failing to observe the disparity in the height of the draw-heads he had used a straight link, held, that he was guilty of such contributory negligence as precluded recovery.¹

Appeal from circuit court, Washington county.

FaUntleroy, J. This is a writ of error to a judgment of the circuit court of Washington county, rendered in an action of trespass on the case, in said court pending, February 22, 1887, in which David S. Emmert is plaintiff, and the Norfolk & Western Railroad Company is defendant.

The facts disclosed in the record are as follows: The plaintiff, Emmert, in the fall of the year 1881, was switchman and car-coupler in the employ of the Norfolk & Western Railroad Company, at their yard at Bristol. As such, it was his duty to shift the cars and trains upon said yard, and make up trains to leave the station. The shifting was done by a yard engine and an engineer, under the direction and control of the switchman and coupler while engaged in the operation of shifting. On the occasion of the alleged injury complained of, in November, 1881, two freight trains came into the yard from the east, very close together. The first train stopped on the main track, and the locomotive which had brought it in was detached from it, and the yard engine was coupled to the rear end of the train by the said switchman and coupler, and drew it backward to a switch, and pushed it upon a side track. The caboose, which was the rear car of the train, was unshackled or uncoupled from the car immediately in front of it, and the yard engine stood there holding the caboose until the second train came in. The second train stopped upon the track, and the plaintiff brought the yard engine, with the caboose attached, out upon the main track, and coupled the two cabooses together, and then uncoupled the caboose of the second train from the cars in front of it, and caused the yard engine to draw the two cabooses back for the purpose of putting them upon a track called the coal-pen track, where the cabooses were usually placed, and upon which a caboose was then standing. After changing the switch leading into the coal-pen track, plaintiff went forward, in advance of the moving cabooses, for the purpose of coupling them to the standing caboose; it being the custom to so couple the cabooses for the purpose of bringing them out, when needed, to be attached to trains. The plaintiff took his position by the bumper or draw-head of the standing caboose, having given to the engineer of the yard engine the proper signals, which were strictly obeyed, and, when he attempted to make the coupling, the draw-heads or bumpers passed each other, the drawhead of the moving caboose passing under that of the standing caboose, and the plaintiff was caught between the cabooses. He extricated himself, and, with assistance, he got upon the engine, where he remained one or two hours, and then went to his home, close by, where he was confined to his house some three or four weeks, and then went back into the employ of the plaintiff in error, —first in the depot, then on the transfer platform, and afterwards as a watchman at the Main

'It is the duty of the employe to observe and report defects in the machinery used in the especial field of his employment, and the master is not chargeable for injuries resulting from the neglect of such duty. Wanamaker v. Burke, (Pa.) 2 Atl. Rep. 500; Chicago & A. R. Co. v. Bragonier, (111.) 7 N. E. Rep. 688; Stroble v. Chicago, M. & St P. R. Co., (Iowa,) 31 N. W. Rep. 63.

[3 S.E. 146]

street crossing; and while so last employed, as watchman, he alleges that he caught cold in his injured hips, and was laid up twelve months. It does not appear that the plaintiff ever claimed that he was injured on account of any defect in the cars, or by the fault or neglect of the railroad company, 01 its agents or servants, until about a year after the accident, when he brought this suit.

At the sixth trial of the case instructions were asked for and refused, and instructions were given by the court of its own, to which exceptions were taken, and the jury rendered a verdict in favor of the plaintiff for the sum of $950. A motion was made to set the verdict aside, and grant a new trial, upon the ground that the verdict was contrary to the law and the evidence; which motion the court overruled, and entered judgment upon the verdict for the plaintiff. The declaration, as amended, was demurred to, and the court overruled the demurrer; which action of the court, as well as the refusing and giving instructions as aforesaid, were excepted to, and are assigned as error by the plaintiff in error. But in the view which we take of the case,...