Norfolk & W. Ry. Co. v. Johnson

• Decision Date: 24 April 1967
• Citation: 154 S.E.2d 134,207 Va. 980
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY v. Joseph B. JOHNSON.
• Court: Virginia Supreme Court

Page 134

154 S.E.2d 134

207 Va. 980

NORFOLK AND WESTERN RAILWAY COMPANY v. Joseph B. JOHNSON.

Supreme Court of Appeals of Virginia.

April 24, 1967.

Rehearing Denied June 12, 1967.

Thomas R. McNamara, Norfolk (Lawson Worrell, Jr., Williams, Cocke, Worrell & Kelly, Norfolk, on brief), for plaintiff in error.

Henry E. Howell, Jr., Norfolk (W. Cullen MacDonald, Howell, Anninos & Daugherty, Norfolk, on brief), for defendant in error.

Before EGGLESTON, C.J., and SPARTLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

I'ANSON, Justice.

Joseph B. Johnson instituted this action against the Norfolk and Western Railway Company (Railroad) to recover damages for personal injuries sustained when a hose used to transmit steam from a generator to passenger trains burst. The trial court sustained plaintiff's motion to strike Railroad's evidence, instructed the jury that Railroad was negligent as a matter of law, and submitted the case to the jury on the quantum of damages only. The jury returned a verdict for plaintiff in the amount of $60,000, and Railroad is here on a writ of error to a final judgment entered on the verdict.

The Railroad entered into a contract with B. F. Parrott & Company, Inc. (Parrott), for the construction of a new passenger terminal at Lambert's Point in Norfolk, Virginia. E. K. Wilson & Sons, Inc. (Wilson), was the subcontractor responsible for plumbing and heating, including the installation of a boiler. Norport Supply Company, Inc. (Norport), plaintiff's employer, was the subcontractor for the insulation of the permanent boiler being installed by Wilson.

The terminal was to be a two-story building with offices, and passenger and baggage facilities. On the west side of the building was to be a boiler room which would share a common wall with the terminal but which would have no connecting door. The boiler room was to house a boiler which would furnish steam through underground pipes to different locations along the tracks for the purpose of heating passenger cars standing at the station.

The contract date for completion of the new station was November 15, 1962. However, when it became apparent that completion would be delayed, the Railroad set December 26, 1962, as the date to begin operations at the new terminal. By December 26 the Railroad occupied the offices, waiting room and ticket facilities. The underground pipe running from the boiler room to points along the tracks was in place but the boiler had not been installed. Before the Railroad moved to its new terminal, it directed Parrott to supply steam on a temporary basis so that operations at the new location could begin on December 26. Parrott requested Wilson to provide the steam, and Wilson engaged E. T. Gresham Company, Inc. (Gresham), to furnish a portable steam generator and two operators. When the portable steam generator was put into operation, a hose extended from the generator, which was located just outside the boiler room, through a door on the south side of the boiler room and across the floor in an 'S' shape to the permanent underground pipeline. Railroad personnel notified the steam generator operators when trains would be in the station. The trainmen would then connect hose from outlets of the underground system along the tracks to cars and open the valves to supply steam to heat the cars.

Plaintiff testified that on January 3, 1963, he was working in the boiler room at the new station. While he was insulating the newly installed boiler, the hose from the portable steam generator to the underground system burst and scalded him.

Sometime before plaintiff was injured a similar hose had burst while transmitting steam from the portable generator to the underground pipeline, damaging the boiler room door which was repaired by Parrott. A Gresham employee replaced the damaged hose with the one which subsequently burst and injured plaintiff.

The hose which burst and caused injury to plaintiff had a 'Butterworth Systems, Inc.' label. Harry W. Keeling, Jr., an engineer and naval architect, testified that the Butterworth hose was capable of carrying water heated to a temperature of 180 degrees and was designed for the purpose of cleaning fuel or cargo tanks on tankers and barges. It has an inner tube of neoprene, which is covered by two layers of rayon braid, with small wire strands between the layers to reduce static electricity. The outer layer is also neoprene with carbon black on it. He said that neoprene is never used for a steam hose because it softens and comes apart at 300-325 degrees. A steam hose has an inner tube of natural rubber or teflon. In lieu of the rayon braid there is wire mesh to prevent the hose from bursting. However he said a Butterworth hose and a steam hose look alike, and it would be difficult for an untrained person to tell them apart by visual inspection.

Walter Young, resident vice-president of the Railroad, testified that uncontrolled steam is very dangerous. He defined 'uncontrolled' steam as that which is allowed to escape or is transmitted in a container not designed for the pressure it is carrying.

It is undisputed that plaintiff's injuries resulted from the negligent use of an improper hose. Hence the first question for our determination is whether the persons furnishing and operating the steam generator were servants of the Railroad.

In determining whether a master-servant relationship exists, the crucial question is whether the Railroad had the right to control not merely results but the progress and details of the work. Wells v. Whitaker, 207 Va. 616, 624-625, 151 S.E.2d 422, 429-430 (1966); Coker v. Gunter, 191 Va. 747, 756, 63 S.E.2d 15, 17 (1951); Epperson v. DeJarnette, 164 Va. 482, 486-487, 180 S.E. 412, 413-414 (1935).

Plaintiff says that because the train personnel notified the steam generator operators when trains could be expected in the station in order to get the steam necessary for heating the cars, the operators of the steam generator were the servants of the Railroad. We do not agree with this contention.

In Coker v. Gunter, supra, Justice Buchanan cited Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480, where the Supreme Court said that under the circumstances of that case the giving of signals by the stevedore to the winchman was not the giving of orders but of information, and the winchman's obedience to those signals showed cooperation rather than subordination. 191 Va. at 753, 63 S.E.2d at 17.

Here, as in Standard Oil, we find from the evidence that notification to the generator operators of when the trains would be in the station constituted the giving of information, not orders, and did not amount to control or the right to control the manner or method of providing the steam. The relationship between the railroad personnel and the generator operators was one of cooperation rather than subordination. Consequently the generator operators were not the servants of the railroad.

Having concluded that a master-servant relationship did not exist between the railroad and the Gresham employees, we now turn to the question whether the railroad is liable in its status as the employer of an independent contractor.

The general rule in Virginia, as elsewhere, is that the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. E.g., Smith, Adm'r v. Grenadier, 203 Va. 740, 747, 127 S.E.2d 107, 112 (1962); Bibb's Adm'r v. N. & W.R.R. Co., 87 Va. 711, 14 S.E. 163 (1891); 2 Restatement (Second) Torts § 409 (1965). There are exceptions to the general rule with respect to work which is unlawful, a nuisance, inherently dangerous, or will in the natural course of events produce injury unless special precautions are taken. Ritter Corporation v. Rose, 200 Va. 736, 107 S.E.2d 479 (1959); Bowers v. Town of Martinsville, 156 Va. 497, 159 S.E. 196 (1931); Richmond v. Sitterding, 101 Va. 354, 359, 43 S.E. 562, 563, 65 L.R.A. 445 (1903).

In Bibb's Adm'r v. N. & W.R.R. Co., supra, we held that the railroad was not liable for the death of an employee of an independent contractor who was engaged to replace an old bridge with a new one without interrupting traffic. When a train approached the bridge, one of the contractor's employees signalled that it might proceed; and when it did so, the bridge collapsed, killing plaintiff's decedent. Recovery was denied because 'the work was not inherently dangerous and neither it nor the results of its building were nuisances in themselves.' The court rejected the argument that inasmuch as injury might result from careless execution of the work, the railroad was personally bound to see that precautions were taken to prevent it. It was expressly held that this duty was imposed only where injury was consequent upon doing the work in the ordinary mode. 87 Va. at 737, 14 S.E. at 172. See also, Norfolk, & W. Ry. Co. v. Stevens, 97 Va. 631, 34 S.E. 525, 46 L.R.A. 367 (1899).

In Emmerson v. Fay, 94 Va. 60, 26 S.E. 386 (1896), the property owner was held not liable to a plaintiff who was injured as a result of the negligence of an employee of the independent contractor who allowed an iron ball to fall from the roof of a lumber dry kiln being erected on a lot adjoining the street along which she was walking. There it was said that the construction of a building seven feet from the street line was not wrong per se, or a nuisance, nor would it necessarily injure anyone. 94 Va. at 65, 26 S.E. at 388.

In Richmond v. Sitterding, supra, Sitterding, who had engaged an independent contractor to build some houses, was held not liable for injuries sustained by a plaintiff who fell over a plank negligently extended across the sidewalk by laborers of the independent contractor. This court said that the erection of buildings adjacent to a street was neither inherently dangerous nor did it necessarily create a nuisance. 101 Va. at 360, 43 S.E. at 564.

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