Norfolk & W. Ry. Co v. Arrington

• Citation: 109 S.E. 303
• Court: Supreme Court of Virginia
• Decision Date: 22 September 1921
• Parties: NORFOLK & W. RY. CO. et al. v. ARRINGTON.

109 S.E. 303

NORFOLK & W. RY. CO. et al.

v.ARRINGTON.

Supreme Court of Appeals of Virginia.

Sept 22, 1921.

Error to Circuit Court, Montgomery County.

Action by Cora Arrington, administratrix of the estate of G. C. Arrington, deceased, against the Norfolk & Western Railway Company and Walker D. Hines, Director General of Railroads. Judgment for the plaintiff against both defendants, and they bring error. Reversed and remanded as to the Railway Company, and affirmed as to the Director General.

Jordan, Roop & Sowder, of Christianburg, P. M. Rivinus, of Philadelphia, Pa., and H. J. Phlegar, of Christianburg, for plaintiffs in error.

Harless & Calhoun, of Christianburg, for defendant in error.

PRENTIS, J. G. C. Arrington was killed by a train of the Norfolk & Western Railway Company, in August, 1918, while the system was being operated by the Director General of Railroads. His administratrix sued both the company and the Director General of Railroads, and 'recovered against both. Both defendants complain of the judgment, and three of the errors assigned are relied upon in this court.

1. The first assignment is that the court erred in overruling the motion of the Norfolk & Western Railway Company to dismiss the action against it, relying upon General Orders Nos. 50 and 50A, United States Railway Administration.

The question thus raised has been much discussed in the state and federal courts recently. It is unnecessary for us to treat it at any length, because by a recent decision of the Supreme Court of the United States, handed down June 1, 1921, the question must be regarded as definitely settled. Missouri Pac. R. Co. v. Ault, 256 U. S. —, 41 Sup. Ct. 593, 65 L. Ed——.

It is there said, with reference to this identical point:

"The company is clearly not answerable in the present action if the ordinary principles of common-law liability are to be applied. The Railroad Administration established by the President in December, 1917, did not exercise its control through supervision of the owner-companies, but by means of a Director General through 'one control, one administration, one power for the accomplishment of the one purpose, the complete possession by governmental authority to replace for the period provided the private ownership theretofore existing.' Northern Pac. Ry. Co. v. North Dakota, 250 U. S. 135, 148, 63 L. Ed. 897, 902, P. U. R. 1919D, 706, 39 Sup. Ct. 502. This authority was confirmed by the Federal Control Act of March 21, 1918, c. 25, 40 Stat, at L. 451, and the ensuing proclamation of March 29, 1918. 40 Stat, at L. 1763. By the establishment of the Railroad Administration and subsequent orders of the Director General, the carrier companies were completely separated from the control and management of their systems. Managing officials were 'required to sever their relations with the particular companies and to become exclusive representatives of the United States Railroad Administration.' U. S. R. R. Adm. Bulletin, No. 4, pp. 113, 114, 313. The railway employees were under its direction and were in no way controlled by their forme i employers. See Bulletin No. 4, p. 168, § 5, page 198 et seq., page 330 et seq. It is obvious, therefore, that no liability arising out of the operation of these systems was imposed by the common law upon the owner companies, as their interest in and control over the systems were completely suspended."

The opinion handed down by Mr. Justice Brandeis proceeds with convincing reasoning to show the soundness of the conclusion that the motion of the Missouri Pacific Railway Company in that case to dismiss the action against it should have been sustained.

The very great weight of authority in the inferior federal courts as well as in the state courts supports this view, and the question is no longer open.

The motion of the Norfolk & Western Railway Company should have been sustained, because the injury to the plaintiff's intestate occurred while the system was being operated by the Director General, and the court committed error in overruling it. This conclusion, however, does not affect the liability of the Director General of Railroads (Code 1919, § 6365), and we will proceed to consider the other assignments of error.

2. On cross-examination of the engineman, Douthat, counsel for the plaintiff asked the following question:

"Q. Then you did not blow it until you got to the straight track, although you acknowledge the man was oblivious to his danger and standing on the west-bound track?"

To this question the attorneys for the defendants objected, the objection was overruled, and exception duly taken, but immediately thereafter the court ruled that the question was improper, and sustained the objection thereto.

As the engineer had not acknowledged that the deceased was oblivious to his danger, the question was manifestly...