Norfolk & W. Ry. Co v. Whitehurst

• Decision Date: 12 June 1919
• Citation: 99 S.E. 568
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. WHITEHURST.

99 S.E. 568

NORFOLK & W. RY. CO.

v.WHITEHURST.

Supreme Court of Appeals of Virginia.

June 12, 1919.

Sims, J., dissenting in part.

Error to Law and Chancery Court of City of Norfolk.

Action by one Whitehurst against the Norfolk & Western Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Hughes, Little & Seawell, of Norfolk, and Theo. W. Reath, of Philadelphia, Pa., for plaintiff in error.

Daniel Coleman, B. D. Willis, O. L. Shackelford, and N. T. Green, all of Norfolk, for defendant in error.

BURKS, J. Whitehurst sued the Norfolk & Western Railway Company for a personal injury, and recovered a judgment for $15,000, which the trial court refused to set aside, and to that judgment this writ of error was awarded.

Whitehurst had been employed as a fireman on a yard engine of the railway company, on its yard in the city of Norfolk, for about a year prior to his injury, though he had worked only "a few nights" on that part of the yard on which he was injured. There are a number of tracks on the yard, and at the switch point of each track connecting the siding with the lead track there is maintained a switch target, standing between 2 and 3 feet above the ground, upon which there is a lamp, which is kept lighted at night, displaying lights of different colors to indicate whether the switch is open or closed. At 12 o'clock on the night of July 22, 1917, Whitehurst got upon the yard engine to discharge his duties as fireman, and about half an hour thereafter, while the engine was running at the rate of about 6 miles an hour, a pick, which was one of the necessary tools used in firing the engine dropped off the engine to the ground, and Whitehurst jumped to the ground, recovered his pick, and ran after the engine to get on again. He had the pick in his left hand, and, as he reached up to grab the handhold on the engine with his right hand, he was struck by an unlighted switch target and knocked to the ground. His left hand was thrown upon the rail, and was run over and cut off. He claims that the unlighted switch target was the proximate cause of his injury, and that the failure to light the target was negligence on the part of the company, which renders it liable to him in damages. Hence this action.

It is admitted that both the plaintiff and the defendant were engaging in interstate commerce at the time of the injury, and that the case is controlled by the federal Employers' Liability Acts (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]; Act April 5, 1910, c. 143, " 36 Stat. 291).

We have discussed the subject of proximate cause in a number of cases, and it is not to be expected that the discussion shall be repeated in every case of tort brought to this court. Each case must stand on its own facts, and the decision be regarded as another illustration of the principle involved. In the case at bar we have no difficulty in saying that the unlighted switch target was the proximate cause (the causa causans) of the plaintiff's injury. The question which has given us concern is whether the defendant was guilty of such negligence as entitled the plaintiff to recover of it for his injury.

The "foreseeableness, " or reasonable anticipation, of the consequences of a wrongful or negligent act, is not the measure of liability of the guilty party, though it may be determinative of the question of his negligence. When once it has been determined that the act is wrongful or negligent, the guilty party is liable for all the consequences which naturally flow therefrom, whether they were reasonably to have been anticipated or not; and in determining whether or not the consequences do naturally flow from the wrongful act or neglect, the case should be viewed retrospectively—that is to say, looking at the consequences, were they so improbable or unlikely to occur that it would not be fair and just to charge a reasonably prudent man with them? If not, he is liable. This is the test of liability; but, when liability has been established, its extent is to be measured by the natural consequences of the negligent or wrongful act. The precise injury need not have been anticipated. It is enough if the act is such that the party ought to have anticipated that it was liable to result in injury to others. City Gas Co. v. Webb, 117 Va. 269, 84 S. E. 645; Pulaski Gaslight Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189, 1199, 32 L. R. A. (N. S.) 825; Cooley on Torts (Student's Ed.) p. 33; Hill v. Winsor, 118 Mass. 251; 25 Harvard Law Review, 245, 246; 1 Shear. & Red. (5th Ed.) § 28, and cases cited. In Christianson v. Chicago, etc., R. Co., 67 Minn. 94, 69 N. W. 640, one hand car was following too closely upon another, and a sectionman on the first car fell off and was injured by being struck by the car following. It was insisted that the company could not be held liable, because it could not have been reasonably anticipated that the plaintiff would fall from the car. In reply to this contention the court said:

"What a man may reasonably anticipate is important, and may be decisive, in determining whether an act is negligent, but is not at all decisive in determining whether that act is the proximate cause of an injury which ensues. If a person had no reasonable ground to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all; but if the act itself is negligent, then the person guilty of it is equally liable for all its natural and proximate consequences, whether he could have foreseen them or not. Otherwise expressed, the law is that, if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow. Bevan, Neg. p. 97; Hill v. Winsor, 118 Mass. 251; Smith v. Railway Co., L. R. 6 C. P. 14. For citation of cases on this question, see 16 Am. & Eng. Enc. Law, p. 436 et seq. * * * Tested by this rule, we think that it is clear that the negligence of those on the rear car was the proximate cause of plaintiff's injuries; at least, that the evidence justified the jury in so finding. Counsel admitted on the argument that if, by derailment or other accident, the front car had been suddenly stopped, and a collision and consequent injuries to plaintiff had resulted, the negligence of those on the rear car would have been the proximate cause. But we can see no difference in principle between the case supposed and the present case. The causal connection between the negligent act and resulting injury would be the same in both cases. The only possible difference is that it might be anticipated that the sudden stoppage of the car was more likely to happen than the falling of one of its occupants upon the track."

In isham v. Dow, 70 Vt. 588, 591, 41 Atl. 585, 586, 45 L. R. A. 87, 92, 67 Am. St. Rep. 691, 693, it is said:

"Care must be taken to distinguish between what is negligence and what the liability is for its injurious consequences. On the question of what is negligence, it is material to consider what a prudent man might have reasonably anticipated; but, when negligence is once established, that consideration is entirely immaterial on the question of how far that negligence imposes liability."

See, also, Smith v. Railroad Co., L. R. 6 C. P.; Marsh v. Great Northern Paper Co., 101 Me. 489, 64 Atl. 844.

Undoubtedly the primary object of the switch targets and of the signals shown thereon was to give information to the crews operating engines and cars thereon of the condition of the siding, whether open or closed, and if, in consequence of the failure of the defendant to light a target, the engine had run into an open siding, and there collided with another engine or car, causing injury to the plaintiff, it is conceded the defendant would have been liable. For the purpose of avoiding such injuries to that class of employes, the duty of the defendant to have the lamps on the targets lighted was imperative, and the breach of that duty proximately resulting in and injury to such employ would plainly have rendered the defendant liable to him for the resulting damage. The plaintiff was one of that class of employes to whom this imperative duty was owing for the purpose aforesaid. This purpose was a very important one, and he had the right to expect that so imperative a duty would be performed. Although the motive for lighting the targets was different, still the duty to light them remained, and that duty was owing by the defendant to the plaintiff. The plaintiff had a reasonable expectation that all lamps on the switch targets would be lighted at night, and that where there were no lamps there would be no targets, and this reasonable expectation was induced by the obligation resting upon the defendant to keep them lighted, and its consequent conduct in doing so. No matter what the motive was, there was an undertaking on the part of the defendant that it would keep the switch targets lighted at night for the use of the plaintiff, and if this undertaking was violated by the defendant there was danger of injury to the plaintiff, not necessarily the specific injury suffered, but injury of some kind. If switches had to be changed or lamps relighted, it was necessary for the plaintiff and others charged with these duties to be upon the ground to discharge them, so that the defendant knew that the absence of lights would be a source of danger, not only to those on the engines and cars, but also to those whose duties required them to be on...