Norfolk & W. R. Co v. Thomas' Adm'r

• Decision Date: 20 July 1893
• Citation: 90 Va. 205,17 S.E. 884
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. THOMAS' ADM'R.

17 S.E. 884

90 Va. 205

NORFOLK & W. R. CO.

v.THOMAS' ADM'R.

Supreme Court of Appeals of Virginia.

July 20, 1893.

Railroad Companies —Death of Brakeman— Permitting Fireman to Act as Engineer— Negligence of Vice Principal—Effect—Declaration—Sufficiency.

1. Where a locomotive engineer leaves his engine to the management of an inexperienced fireman while a flying switch is being made with such engine under the direction of the conductor, and a brakeman is killed by reason of the improper management of the engine by such fireman, the railroad company is guilty of negligence.

2. Where the conductor, of whose crew such engineer, fireman, and brakeman formed a part, was present, and knew of and permitted the performance of the engineer's duties by such fireman, the company cannot escape lia bility on the ground that the brakeman and engineer were fellow servants.

3. Where, in an action for such death, the declaration details all the facts, showing that at the time of the accident the engine was being managed by such fireman, there is no merit in a claim that there is no allegation of a failure of the company to keep a competent engineer, and that, therefore, such question is not at issue.

Error to circuit court, Pulaski county; S. W. Williams, Judge.

Action by the administrator of the estate of J. C. Thomas, deceased, against the Norfolk & Western Railroad Company, to recover damages for the death of plaintiff's intestate, caused by defendant's negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant brings error. Affirmed.

Phelagar & Johnson and J. E. Moore, for plaintiff in error.

Wysor & Morton and White & Buchanan, for defendant in error.

HINTON, J. This is an action of trespass on the case, brought to recover damages for the killing of one J. C. Thomas, a brakeman, while lie was assisting in shipping cars of the Norfolk & Western Railroad Company. At the trial the jury found a verdict for the plaintiff for $4,000, subject to the demurrer to the evidence, and the court entered judgment thereon.

Now, by thus demurring, the defendant company, according to the settled rule, waived all evidence on his part in conflict with that of the demurrer, admitted the credit of the evidence demurred to, and all inferences of fact fairly deducible therefrom, and referred it to the court to deduce the fair inferences from the evidence. Hans-brough's Ex'rs v. Thorn, 3 Leigh, 147; Trout v. Railroad Co., 23 Grat. 630. Applying this rule, the case appears to be as follows: Thomas, who had only been in the employment of the railroad for five or six days as a yard brakeman, was one of a crew consisting of the conductor, engineer, fireman, and three brakemen, whose business it was to shift cars and make up trains in said yard. In this yard there were two tracks, —one called the "lead track, " from which a switch track known as "switch' No. 2" led off in a southeasterly direction, and another, on the north side of the lead track, called the " main track;" and between the lead track and the main track there was a cut-off, which, on the lead track, pointed east. At the time of the accident, all but one of the six or seven cars had been put on switch No. 2, and that one the company, through its conductor, who was present, in person, ordered to be put on the lead track, west of the cut-off, and the engine to go on the main track. This the conductor ordered to be done by a flying or running shift. Such shifts are more dangerous than shifts with chain and push poles, and are made in the following manner: The engine is coupled to the car, and both are put in motion. When the momentum is sufficient to carry the car beyond the switch, the speed of the engine, in obedience to a signal from the man who is on the car, slackens so that the couplingpin can be withdrawn. The pin is then withdrawn, the engine is signaled to go ahead, and its speed is gradually Increased until it runs ahead of the car, passes the switch on one track, when the switch is changed before the car reaches it, and thereby the car is thrown on a...