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

• Decision Date: 21 November 1901
• Citation: 99 Va. 763,40 S.E. 54
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. CROMER'S ADM'R.

40 S.E. 54

99 Va. 763

NORFOLK & W. RY. CO.

v.CROMER'S ADM'R.

Supreme Court of Appeals of Virginia.

Nov. 21, 1901.

INJURY TO SERVANT—DEFECTIVE APPLIANCES —CONTRIBUTORY NEGLIGENCE—PROXIMATE CAUSE—INSTRUCTIONS.

1. Plaintiff's intestate, a fireman, was killed by the engine on which he was employed colliding with freight cars which had escaped

from a siding onto the main track. The court, in instructing the jury, left out of view all appliances furnished by the defendant for controlling cars on side tracks, and submitted to the jury to determine whether the absence of a derailing switch at the siding in question was negligence rendering the company liable. A further instruction was given that if the engineer of the train failed to have his train under control, in disregard of the company's rules, his negligence was that of a fellow servant, but if it was the duty of the defendant to provide a derailing switch, and it was negligent in failing to so provide such switch, such negligence concurred with that of the engineer, and was the proximate cause of the accident. Held, that such instructions were erroneous, as singling out the absence of a derailing switch as controlling evidence of negligence, without regard to the other facts proved.

2. In an action for the death of an employe, an instruction authorizing a recovery if the defendant's negligence was the proximate cause, or one of the proximate causes, of the accident, was erroneous, where there was evidence of contributory negligence.

3. An instruction was erroneous which authorized a recovery, though the engineer was guilty of contributory negligence in running the train at a prohibited rate of speed, if the defendant was negligent in not having furnished a derailing switch at the siding; it being the engineer's duty to have avoided the accident, if possible, though the defendant was negligent.

4. An instruction imposing the burden of proof on the defendant to sustain its plea of contributory negligence by proof that but for such negligence the accident would not have occurred was erroneous.

5. An instruction was erroneously refused which placed the burden of proof on plaintiff to show negligence, and which required that the proof must amount to more than a probability.

6. In an action against a railroad company for the death of an employe, it appeared that the tracks and the whole roadbed were under the supervision of competent officials, and that the general equipment was in a reasonably safe condition, but liability was predicated on failure to furnish a certain derailing switch. Defendant requested an instruction that a master must use ordinary care to provide a reasonably safe place in which his servant is to work, and that in such matters even the skillful will frequently differ, and the master should not be adjudged negligent for not conforming to a method believed by some to be less perilous than the one he has adopted, and that ordinary care is such care as a person of ordinary prudence would exercise under all the circumstances, which instruction was refused. Held error.

Error to circuit court, Roanoke county.

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

Watts, Robertson & Robertson, for plaintiff in error.

Hoge & Hoge, for defendant in error.,

KEITH, P. The west-bound passenger train on the Norfolk & Western Railway approached Pulaski, a station on that road, at about 8:15 p. m. on January 6, 1900, 1 hour and 30 minutes late, and within the station limits came into collision with some freight cars which had escaped from the siding upon which they were standing; and Cromer, the fireman on the passenger train, was killed. His administrator brought suit against the Norfolk & Western Railway Company, charging its negligence as the cause of the accident. A verdict and judgment were rendered for the plaintiff, and the case is before us upon a writ of error.

The evidence tends to show: That the passenger train at the time of the collision was running at the rate of 30 miles an hour. That the rules of the railway company required that: "When within the limits of the various yards, all trains must be run with great care, and under the control of the en-glneman.

"Switching engines will have the right to work within yard limits upon the time of second and succeeding class trains, and also upon the time of delayed first-class trains, but must clear the track immediately upon their arrival. The main track must be kept clear for first-class trains that are on time. 'First-class trains' means passenger trains, and 'second-class trains' means freight trains." That rule 164, especially applicable to firemen, reads as follows: "When running upon the road they must keep a constant lookout ahead when not engaged in firing, and give notice to the engineman of any signals or Indications of danger. If the engineman has to look away from the track In front for any reason, the fireman must maintain the watch until the engineman can resume it. They will not put coal in engines when coming into stations, or at such other points as safety requires that they keep lookoutahead, "—and that the deceased had been furnished with a book of rules. That the yard limits at Pulaski are about one-half mile east of the scene of the accident which occurred at a point some hundreds of yards east of the station house, and about 50 yards east of the point where the side tracks enter the main track. That on the evening of January 8th 13 freight cars, loaded some of them with iron, and others with coke, for the use of the Pulaski furnace, were standing about 600 yards west of its intersection with the main track. That one of the cars had been inspected on the 2d, seven of them on the 6th, and five of them on the 7th, of January. That they were sufficiently equipped with brakes, which were in good order, and that they were standing upon the siding controlled by the brakes at about 6 o'clock on the evening of the accident, and that the cars would not have been moved unless the brakes had in some way been released.

The following occurrence is of interest as tending to show the sufficiency of the brakes to control the cars upon the sidings: 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 into 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

There is a suggestion on the part of counsel that the brakes might have been so affected by expansion and contraction, due to natural causes, as to render them ineffectual, but there is no evidence to that effect At the junction of the siding with the main track there is a device known as the "Romapo Switch, " which works either by hand or automatically, and is so arranged that if thrown for the main line (that is to say, so adjusted that a car upon the siding could pass to the main line), or if a car were to run through the switch as the result of an accident, it would show a red light or the absence of any light should it chance to be extinguished or obscured from any cause, would be a warning of danger. In other words, a white light at the switch is the only assurance of safety. The rules prescribe, as we have seen, that within the limits of the yards trains must he "run with great care and under control of the engineman, " and the evidence shows that a train is under control when it can be stopped promptly or within the limit of vision.

It appears that at many points on the Norfolk & Western Railway there are upon the sidings derailing switches, by which one of the rails is moved so as to break the continuity of the track and derail a car passing over it; that there has been such a switch at Pulaski, which had been removed about six months before the accident, and there is no direct evidence that Cromer knew either of its former existence or of its subsequent removal. There is evidence tending to show that such a contrivance is necessary to prevent the escape of cars placed upon sidings, and also evidence that they are used only where there is a continuous descending grade from the siding to and upon the main track, so that a car escaping from the siding would run wild upon the main track, and that at Pulaski there was not a continuous descending grade from the siding to the main track, but after passing out upon the main track the escaping car would be brought to a standstill by an up grade.

There is a good deal of conflicting evidence as to the effect of a derailing switch; some witnesses regarding it as a complete protection against cars leaving a siding, while others state: That when the derailer is placed at the usual point, near the intersection of the siding and the main track, a number of cars getting loose upon the siding, the one in front becoming derailed, a wreck would be caused, if the cars had acquired any considerable momentum; and in case of a wreck it might block the main track, as no one could foretell in what direction wreckage would be thrown. That this had occurred at Pulaski on one occasion before the derailer was taken out, and the main track had been blocked. If the derailer were placed a sufficient distance from the main track, this danger would be removed, but the side track between the derailer and the main track would be useless, and therefore derailers were placed a...