Norfolk & W. R. Co v. Brown.1

• Decision Date: 11 July 1895
• Citation: 22 S.E. 496,91 Va. 668
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. BROWN.1

22 S.E. 496

91 Va. 668

NORFOLK & W. R. CO.

v.BROWN.¹

Supreme Court of Appeals of Virginia.

July 11, 1895.

Injury to Railroad Brakeman—Negligence— Proximate Cause—Presumptions by Silence—Fellow Servants.

1. The use of cars of unequal height and mismatched couplings is not such negligence on the part of a railroad company as will render it liable for an injury to a brakeman resulting therefrom.

2. Where the direct cause of an injury to a brakeman while uncoupling cars was the negligent moving of the train by a fellow servant, for which the company is not liable, recovery for the injury cannot be had on the ground that the coupling was defective.

3. In an action against a railroad company for injury to a brakeman while uncoupling cars alleged to have resulted from the negligence of the yard foreman in ordering the engine to back a second time, where there was no direct proof that the foreman gave such an order, and the engineer and fireman both denied that the engine backed a second time, the failure to put the foreman on the stand to deny giving such a second order does not raise the presumption that he gave it

"4. An engineer and brakeman on the same train are fellow servants.

Error to circuit court of city of Roanoke; Dupuy, Judge.

Action for personal injuries by Hugh Brown against the Norfolk & Western Railroad Company. Plaintiff had judgment, and defendant brings error. Reversed.

Watts, Robertson & Robertson, for plaintiff in error.

Smith & King, Marshall Mc-Cormick, and J. Thompson Brown, for defendant in error.

BUCHANAN, J. This is a writ of error to a judgment of the circuit court of the city of Roanoke in favor of Hugh Brown against the Norfolk & Western Railroad Company for the sum of $10,000.

It appears from the record that the plaintiff who was about 19 years of age, was employed by the defendant company on the 15th of September, 1891, as a brakeman in the yards of the defendant company at Roanoke city. The crew of hands with which he was working was engaged chiefly in coupling and uncoupling cars, and in shifting them for the purpose of making up trains. On the 15th of October, one month after he commenced work, while engaged in uncoupling cars, his arm was so injured that it had to be amputated above the elbow. It further appears that he was under the control of the yard master (who, it was admitted in argument, was the vice principal of the defendant company), and that on the day he was injured, while engaged in his usual employment, he went up the yard upon the engine, with the yard master, engineer, and fireman, to shift some cars to make up a freight train. When the engine reached a point opposite the cars which were to be shifted, the yard master ordered him to get off the engine, go over to the train, and cut loose two of the cars that were to be shifted; that the cars in a train in the yard were generally kept "taut" or tight, to prevent the coupling pins from being stolen. In order that the plaintiff might be able to cut the cars loose, as directed, it was necessary for the couplings to be slacked by backing the train. Before going between the cars, the plaintiff gave the signal to the yard master, who was some eight cars nearer the engineer, to back the train. The yard master repeated the signal, and the cars were basked, but not far enough to loosen the coupling pins. The plaintiff then went between the cars, attempted to take out one coupling pin, but was unable to do so, and turned to take out the other. While attempting to get out this pin, and when it was about one-third of the way 6ut, the train came back, caught his arm between the dead blocks or bumpers, and while his arm was so fastened the cars moved back about a car length, when the train slacked up, and his arm was released. The record shows, further, that the cars which the plaintiff was attempting to uncouple when injured were of different heights, and the coupling was what is known as a "mismatched coupling, " and that the difficulty in pulling out the coupling pin was caused by the rear car pressing down the link with which the cars were coupled, and causing it to hang against the coupling pin; that the cars which made up the train came from various roads, with various kinds of drawheads, coupling, etc.; that the plaintiff had never seen a mismatched coupling before that one, and that he only noticed that this one was mismatched a few seconds before the accident happened. It further appeared that if the coupling had not been mismatched there would have been no difficulty in un-coupling them; that the plaintiff, prior to his employment with the defendant company, had worked one month in the machine shops at Roanoke, and four months as a brakeman on a mixed train on the Warrenton Branch of the Richmond & Danville Railroad; and that the plaintiff's engagement with the defendant company was with the knowledge and consent of his parents.

The plaintiff bases his right to recover upon two grounds:

First, that the defendant company was negligent in requiring him to uncouple cars of unequal height, with mismatched couplings, without informing him of the increased danger which he would incur in the performance of that duty.

Second, that the yard master, who had entire control of the railroad yard, and who was admitted to be the vice principal of the defendant company, ordered the train to be moved back the second time, when the plaintiff was Injured,...