Norfolk & W. Ry. Co v. Cromer's Adm'x

• Decision Date: 25 June 1903
• Citation: 101 Va. 667,44 S.E. 898
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. CROMER'S ADM'X.

44 S.E. 898

101 Va. 667

NORFOLK & W. RY. CO.

v.CROMER'S ADM'X.

Supreme Court of Appeals of Virginia.

June 25. 1903.

SERVANT—INJURIES—LIABILITY—FELLOW SERVANTS—NEGLIGENCE.

1. A railroad company would not be liable for the escape of cars from a siding to the main track, and a resulting collision with a passenger train, in which the fireman of the train was killed, if the escape of the cars was due, not to any insufficiency in their brakes, but to the brakes being tampered with.

2. The railroad company, as the law stood on January 8, 1900, would not be liable if the escape of the cars was due to their being displaced and sent adrift by contact with shifting cars; this being the negligence of fellow servants.

3. Courts cannot dictate to railway companies a choice between methods of operation, all of which are shown to be reasonably adequate for the purposes intended to be subserved.

4. Evidence considered, and held to show that the death of the fireman on a passenger train in a collision of the train with freight cars which had escaped from a siding was due to the negligence of the engineer of the train, in which the fireman participated.

Error to Circuit Court of City of Roanoke.

Action by Cromer's administratrix against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Watts, Robertson & Robertson, for appellant.

Hoge & Hoge and Scott & Staples, for appellee.

WHITTLE, J. This is the sequel to the case of Cromer's administratrix against the Norfolk & Western Railway Company, reported in 99 Va. 763, 40 S. E. 54. At the first trial there was a verdict and judgment for the plaintiff, which judgment, on writ of error to this court, was reversed, and the case remanded for a new trial.

At the second trial the plaintiff again prevailed, and recovered the judgment now under review.

The instructions given the jury conformed to the opinion of this court on the first appeal, and the error now assigned is the refusal of the trial court to set aside the second verdict on the ground that it was contrary to the law and the evidence.

In essentials, the evidence on both trials was the same.

It appears that on Monday, January 8, 1900, a west-bound passenger train, on which plaintiff's intestate, Cromer, was fireman, arrived at Pulaski behind time, and, while running at a high rate of speed, collided with some freight cars, which had escaped from a siding, upon which they were stored, to the main track, and Cromer was killed.

The siding in question extends in a westerly direction from the place of accident, by the Pulaski Iron Furnace, to another point on the main line. It further appears that on Saturday, before the accident, 12 cars loaded with ore and coke for the furnace were stored on the siding, with brakes fastened and in safe condition.

As was said by this court on the first appeal: "The following occurrence is of interest as tending to show the sufficiency of the brakes to control those cars. On Saturday preceding the accident, the employés of the company charged with that duty were putting cars in upon the siding, some of which were loaded with coke, when they came in contact with cars laden with ore standing towards the east end of the siding. The coke cars, which were being pushed, and the ore cars, which were at rest, did not couple, and the latter were put in motion by the jar. A brakeman sprang from the car upon which he was standing, overtook the ore cars, seven in number, which were moving off, applied brakes sufficient to stop them, and then at least two more brakes, out of abundant caution.

"It would seem that brakes which were sufficient to stop cars when in motion would be ample to hold them when at rest."

Just how these cars were set in motion on the evening of the accident is wholly a matter of conjecture.

The plaintiff introduced the yard engineer, who stored the cars on the siding, and he propounds two theories on the subject, namely, that the brakes had been either tampered with, or that the cars were started by the impact of 22 or 23 loaded cars which were brought on the siding from the west by the employés of the company. In support of the latter theory, it appears that a few moments prior to the accident, after the yard engineer had left the siding, and while he was in the switch office, he heard these shifting cars come in contact with the stationary cars. The reasonable inference, therefore, would seem to be that the latter were set in motion as a result of that im-pact. And that inference is strengthened by the incident of Saturday, referred to in the opinion of the court.

So far as the liability of the company is concerned, however, it is immaterial which theory is adopted. If the brakes, which were shown by experience, as well as by direct evidence, to be amply sufficient to hold the cars in position, were tampered with, the company would, of course, not be responsible; and, if the cars were displaced and sent adrift by contact with the shifting cars, it was due to the negligence of fellow servants of the deceased, for whose negligence the company was not liable under the then existing law. Norfolk & Western Ry. Co. v. Nuckols' Adm'r, 91 Va. 193, 21 S. E. 342. Therefore upon neither theory has actionable negligence been brought home to the company.

It likewise appears that six...