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

• Court: Virginia Supreme Court
• Writing for the Court: FAUNTLEROY
• Citation: Norfolk & W. R. Co v. Ward.1, 24 L. R. A. 717, 19 S.E. 849, 90 Va. 687 (1894)
• Decision Date: 14 June 1894
• Parties: NORFOLK & W. R. CO. v. WARD.1

19 S.E. 849

90 Va. 687

NORFOLK & W. R. CO.

v.WARD.¹

Supreme Court of Appeals of Virginia.

June 14, 1894.

Injuries to Employe — Liability op Employer —Dangerous Excavation.

1. A railroad company was excavating soil of a treacherous, rotten, and seamy character, requiring very great caution. Chambers were dug in on either side of the soil, and then the blocked-out mass was broken off. The chamber had been sunk to the depth of 13 feet, instead of 6 or 8 feet, as usual. The sides were not supported, and plaintiff, who did not know of the danger, was ordered to go in and dig the chamber deeper, his superior making no examination to ascertain whether it was safe to do this work. The sides caved in, and permanently injured plaintiff. Held, that the company was liable.

2. When the servant shows that his injury was in consequence of an increased risk, not incident to his ordinary employment, but growing out of the master's negligence, the burden of proof is on the master to show that the servant understood the increased dangers.

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

Action by C. C. Ward against the Norfolk & Western Railroad Company for personal injuries. Judgment for plaintiff, and defendant brings error. Affirmed.

Brown & Moore, for plaintiff in error.

R. C. Jackson and Wm. Tompkins, for defendant in error.

FAUNTLEROY, J. After all the evidence had been introduced, the court gave four instructions asked for by the plaintiff, which were excepted to by the defendant, and gave six instructions asked for by the defendant, which were excepted to by the plaintiff. The jury found for the plaintiff, and assessed $1,100 damages. The defendant moved to set aside the verdict and for a new trial, on the ground that the verdict Is contrary to the law and the evidence, which motion the court overruled, and entered the judgment complained of, upon the finding of the jury. The defendant excepted to the action of the court, and the evidence is certified. The plaintiff in error assigns for error that the judgment is erroneous, in that the court overruled the motion to set aside the verdict of the jury, was contrary to the law and the evidence, and to grant a new trial, and that the instructions given to the jury on the prayer of the plaintiff are erroneous. The appellee, Ward, received severe and permanent injury by the caving in of the side of a chamber, or "ground-hog hole, " as known in the parlance of railroad track grading, 18 inches wide, and 13 feet deep, and 12 feet into the mass of impending earth to be excavated and removed, in which he was working in the employ of the defendant company, and into which he was specifically and peremptorily order to go, and dig and excavate it deeper, after he had dug it, and shoveled out the earth, to even a greater depth than was customary and prudent, by the supervising and authoritative "boss" in charge of the work as the agent of the appellant. The defendant company claims that the evidence fails to show any negligence on the part of the company, and that the plaintiff knew, or ought to have known, of the danger of the place and character of the work, and that he assumed the risk incident to his employment. The evidence is certified, and, in reviewing the finding of the jury upon the facts, we are confined to the evidence for the appellee where there is any conflict. Abundant evidence was introduced by the plaintiff (who is the appellee here) to show that the place in which he worked, and the method of the work, as ordered and conducted by the defendant, were not reasonably safe; and that the agent of the company in charge of the digging and excavating did not adopt or observe the requisite and usual caution to prevent or guard against the extreme danger of the work into which he specifically and positively ordered the appellee to go, and which proximately caused his severe and lasting injuries. The soil or earth in which the defendant company was constructing its roadbed-was treacherous at this place, rotten, and seamy; and the evidence shows that It was known to the company's agent and representative to be dangerous to work in, by sinking chambers and undermining and breaking off the forehead or blocked-out mass. Their foreman, who ordered the appellee to go back into the hog hole, and sink it to the unusual and dangerous depth of 13 feet, knew of the risk of the undertaking, and expressed his fear that he would get his men killed in the chambers by the falling in of the sides of the rotten, loose, and seamy earth; and, only a day or two before the accident which injured the appellee, one of the chambers near by caved in, because of the character of the earth and...