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

• Decision Date: 23 January 1902
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. POOLE'S ADM'R.

40 S.E. 627

100 Va. 148

NORFOLK & W. RY. CO.

v.POOLE'S ADM'R.

Supreme Court of Appeals of Virginia.

Jan. 23, 1902.

MASTER AND SERVANT—NEGLIGENCE—EVIDENCE—INSTRUCTION.

1. In an action for the death of a locomotive fireman owing to the sinking of a railroad track, plaintiff held not to have established by a preponderance of the evidence his contention that the sinking of the track was due to defendant's negligence in placing piles of earth on each side of the track, so that rain collected between the piles and flowed to the lowest point of the grade, washing out the roadbed.

2. In an action for damages for injuries plaintiff must sustain his case by a preponderance of evidence.

3. A railroad company is not liable for injuries sustained by an employe by the sliding out or giving way of the foundation on which an embankment rests, where it was made by a different company 40 years before the accident, and there was no obvious defect in its construction.

4. In an action for the death of a locomotive fireman owing to the sinking of a railroad track, plaintiff contended that the accident was owing to defendant having piled earth on each side of the track.' and thereby caused water from rain to collect on the roadbed and flow to the lowest point of grade, and there to wash out the roadbed; while defendant insisted that the accident was due to the giving way of soft earth underlying the embankment, the embankment having been constructed by another company 40 years previously. The court instructed that, if the death was due to failure of defendant to use ordinary care in the construction and maintenance of its roadbed at the place of the accident, plaintiff was entitled to recover. Held, that the instruction was not erroneous in that it made the defendant responsible for the defective construction of the roadbed when it was first built.

5. In an action for the death of a locomotive fireman owing to the alleged negligence of the railroad the court instructed that the jury, in considering the weight to be given to the evidence of the witnesses, might consider the question as to whether any of them were in the employ of the company, and whether they were influenced by their relations with it. Held, that the instruction was not open to the criticism that the court assumed that the mere fact that the witnesses were in the service ofdefendant would render their evidence less Worthy of belief.

Error to circuit court, Nansemond county.

Action by the administrator of W. J. Poole against the Norfolk & Western Railway Company on a judgment in favor of plaintiff. Defendant brings error. Reversed.

George S. Bernard and W. H. Mann, for plaintiff in error.

Davis & Davis, for defendant in error.

BUCHANAN, J. This action was brought by the personal representative of William J. Poole, deceased, to recover damages for the death of his intestate, caused by the alleged negligence of the Norfolk & Western Railway Company, in whose service he was employed as a fireman on one of its locomotives.

Upon the trial of the cause a verdict and judgment were rendered in favor of the plaintiff, and to that judgment this writ of error was awarded.

The first error assigned is that the verdict is not only without evidence to support it, but is contrary to the evidence produced before the jury.

The record shows that about the 25th day of April, 1899, the railroad company went to work on its track at Kilby Lake to raise the grade of the bridge over the lake about five feet. It appears that the raising of the tracks of a railroad over which trains are running for the purpose of improving the grade of the road is very common, and that the method adopted by the defendant for doing the work in question was that usually adopted by railroads, and was a reasonably safe and proper method for doing the work. That method was to block up the bridge from 8 to 12 inches at a time, jack up the track on either side as far back from the bridge as the grade is to be raised, shovel dirt under the ties, and to repeat this until the desired change in the grade has been made. The work thus carried on was continued by the defendant until the grade was raised as high as was desired, when the track was ballasted with slag, commencing at the bridge, arid extending in either direction about 150 feet, the slag being about 12 inches deep at the bridge, and gradually getting shallower until at the end of the 150 feet it was only about 3 inches or less deep. In dumping out the dirt to raise the track some of it would go down the sides of the fill or embankment. To prevent this dirt from going into the water way at the bridge, wings were built out from the center of the abutment of the bridge. These wings were built on a concrete foundation out of solid stones from 3 1/2 to 4 feet square, laid in trenches about 12 feet deep cut in the embankment, and running out from the bridge at an angle of 30°, and high enough to prevent dirt when dumped out near the bridge from filling up the water way. The work of raising the bridge and the track on either side of it was finished on or before the 9th day of June, 1899, the day of the accident. On the evening of that day a train load of dirt to widen the embankment was hauled upon it just east of the bridge, and dumped off the cars on either side, forming banks from 10 to 18 inches higher than the top of the rails of the track, and extended from within 30 feet of the bridge some 200 yards or more eastwardly. These banks were allowed to remain in that condition on the night of the accident, in violation of the defendant company's orders. About 8 o'clock that evening there was a heavy fall of rain, lasting from 25 to 35 minutes. Within a few moments after the rain had ceased, the locomotive upon which the deceased was firing, and which was hauling a west-bound train of empty freight cars, left the track about 60 feet east of the bridge, wrecking itself and six or seven cars, which also left the track, and killed the plaintiff's intestate. No eyewitness, If there were any living, testified to the accident. How the accident occurred and Its cause can only be determined, if at all, by the facts and circumstances in existence before and after it occurred as they are disclosed by the evidence.

The plaintiff claims that the evidence shows that the defendant's failure to level the banks...