Norfolk & W. Ry. Co v. Mann

• Decision Date: 31 January 1901
• Citation: 37 S.E. 849,99 Va. 180
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. MANN.

99 Va. 180

37 S.E. 849

NORFOLK & W. RY. CO.

v.MANN.

Supreme Court of Appeals of Virginia.

Jan. 31, 1901.

INJURIES TO EMPLOYE—DANGEROUS POSITION —UNNECESSARY RISK—NEGLIGENCE OP DEFENDANT—PROOF—INSTRUCTIONS — EXCEPTION—REVIEW.

1. A freight train on which plaintiff was conductor stopped at a station so that part of the cars stood on a bridge, and plaintiff, in seeking a leak in the air brake, found the air escaping from a car standing on the bridge, and, in attempting to pull a rod which was used to bleed the air reservoir, fell off the bridge. There were only two feet between the car and the end of the ties on the bridge, which had no railing. Held, that the refusal to charge that if it was unnecessary for plaintiff to bleed the reservoir while the car was standing on the bridge, and that he could have waited until the bridge was crossed, he could not recover, was erroneous.

2. Where the conductor of a freight train attempted to bleed an air reservoir while the car was on a bridge, to remedy a leak, and the train had been properly inspected before leaving on the trip, and defendant pleaded it was not guilty of negligence, an instruction that if there was a leak in the air pipe which needed plaintiff's attention, and the defect was in the reservoir of a car standing on the bridge, and, to cure it, it was necessary to pull the rod extending at the side of the car, and that in attempting to pull the rod it broke! and plaintiff fell off the bridge, the jury must determine whether he was acting in the proper discharge of his duties, and that if he was so acting, and took proper precautions, as a reasonable man should have done, then they should find for plaintiff, was properly refused, as warranting a recovery without proof of defendant's negligence.

3. Where an instruction presented by defendant was modified by the court, and defendant excepted to the modification, the contention that defendant cannot ask a reversal for error in the modified instruction, because he invited the error, was without merit.

4. Where an instruction was erroneous in warranting a recovery without proof of defendant's negligence, the fact that the court in another instruction informed the jury that they must be satisfied that the injury was the result of defendant's negligence, in order to find for plaintiff, did not cure the error.

Error to circuit court, Prince Edward county.

Action by one Mann against the Norfolk & Western Railway Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

W. H. Mann and F. S. Kirkpatrick, for plaintiff in error.

Lee & Howard, for defendant in error.

KEITH, P. J. The defendant in error recovered a judgment against the Norfolk & Western Railway Company, which is before us upon a writ of error.

The facts as they appear from the record, so far as we deem it necessary to state them in order to dispose of this case, are as follows:

Ollie E. Mann was, on the 29th of April, 1899, when the occurrences took place which constitute the subject of this suit, a conductor on one of the freight trains of the Norfolk & Western Railway Company. He had been in the employment of the company for about 5 years, and was 26 years of age. On the morning of April 29th, he left Crewe, a station on the Norfolk & Western Railway, in charge of a train composed of 55 empty coal bunkers, engine, and caboose. No stop was made until the train reached Farmville, where they found a local freight train ahead of them. When Mann's train stopped at Farmville the rear of it rested on a bridge between 200 and 300 yards to the east of the station. The flag brakeman, as was his duty upon the stoppage of the train, got down and went back to protect the train. Mann, the conductor, left his cab, and started in the direction of the engine, "inspecting the train, —looking over the cars, —as it was my duty to do, and went on and looked over several, and when I got on the bridge I found that one of these cars with the air was leaking pretty rapid, —leaking out of the cross over-pipe (the pipe that runs from the main train pipe to the auxiliary reservoir). The air was escaping, which made it necessary to get the air from the reservoir, and I turned the stop cock, and cut the air out of the reservoir, and when you do that it is necessary to bleed the reservoir to keep the brakes from sticking on the car. After cutting it out, I walked on the side of the bridge 40 or 50 feet from the west end of the bridge. I saw the engineer and brakeman looking over the train, and when I did that I walked around to bleed the reservoir, and caught hold of this rod, which extended through the side of the car, and connects with the release valve. The rod is the same size as that [pointing to model], with the exception that it is longer. I got hold of that to bleed the reservoir, —to let the air off, —when that rod came loose, and threw me right backwards, — not exactly backwards, but sideways, —and all went down together. It knocked me senseless at the time, and I was unconscious about six or seven hours."

By the rules of the Norfolk & Western Railway Company, "conductors must know that the cars in their train have been inspected, and that the brakes, heating apparatus, and air signals are in proper working order. Any omission on the part of the inspectors must be regarded as a danger to the train, and at once be reported to the superintendent."

It further appears that it is the duty ofa conductor to report at the station 30 minutes before the leaving time of the train, which it seems Mann did upon this occasion; to take the number of all the cars; and go to the yard master's office, and check up with the yard clerk, and get orders, and leave there; and to sketch over the train; and to see that all cars were coupled together and in practical running order; and he says all these duties were performed on the morning in question, and thus all of the 30 minutes were consumed.

It might fairly be contended before the jury, from Mann's own testimony, that it was his duty to inspect the train, and the mechanism in connection therewith, the unsafe condition of which it is claimed caused the accident and injury now under investigation. Mann, it is true,...