Norfolk & W. Ry. Co v. Stevens

• Decision Date: 16 November 1899
• Citation: 97 Va. 631,34 S.E. 525
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. STEVENS.

34 S.E. 525

97 Va. 631

NORFOLK & W. RY. CO.

v.STEVENS.

Supreme Court of Appeals of Virginia.

Nov. 16, 1899.

Death by Wrongful Act—Damages—Distribution—Master and Servant—Trial-independent Contractor—Negligence.

1. In an action by an administrator for wrongful death of his decedent, the manner in which the damages are to be distributed is for the jury, and their decision cannot be complained of by defendant.

2. In an action for wrongful death, special damages, because of the physical condition of the mother of plaintiff's intestate caused by his death, can be recovered, although no such damages were claimed in the declaration.

3. Damages for an attack of bronchitis, claimed to have been caused by the nervous condition following the death of a son in a railway accident, are not recoverable in a suit by the son's administrator for wrongful death, since there is no necessary or probable connection between the negligence which resulted in the death of the son and the nervous condition which resulted in the attack of bronchitis.

4. An instruction predicated upon evidence improperly admitted is erroneous.

5. Where it is the custom of railroad companies to have certain work, not essentially hazardous, done by independent contractors, and ordinary care is used in the selection of such contractor, the railroad company cannot be held re sponsible for injuries resulting to its employés through the negligence of such independent contractor, since the railroad company is not an insurer of the safety of its employés, but is bound only to exercise ordinary care for their safety.

Error to hustings court of Roanoke.

Action by Charles R. Stevens, administrator of the estate of Joseph Stevens, deceased, against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Watts, Robertson & Robertson and Smith & King, for plaintiff in error.

Moornaw & Woods, for defendant in error.

KEITH, P. Plaintiff in error, the Norfolk & Western Railway Company, entered into a contract with the Phoenix Bridge Company, by which the latter undertook to put in a new bridge in the place of an old one, over South river, a tributary of North river, in the county of Rockbridge, Va. The substitution of a new bridge for an old one, without interrupting the traffic upon the road, must be done with caution, and by skillful and capable mechanics; but when reasonable care is exercised, it appears from the proof not to be attended with any particular danger, and is not considered an intrinsically hazardous undertaking. The evidence shows that the Phoenix Company does an extensive business in the construction of bridges, and is considered careful, reliable, and competent. The contract between it and the Norfolk & Western Railway Company contains the stipulations and conditions which have been suggested by experience as tending to promote the safety of those exposed to the risks incident to the construction of a bridge under such circumstances.

Upon the occasion of the accident which is the subject of this suit, the bridge was approaching completion. One span was finished, and another had progressed so far that, in the opinion of the Phoenix Bridge Company, it was safe to remove the whole of the false work which had supported the bridge while the work was being done upon it. Under these circumstances, a train of the plaintiff in error approached at the stipulated rate of speed, not exceeding four miles per hour, passed over the completed span in safety, and crushed through the other, killing Joseph Stevens, the fireman. His administrator brought suit against the railway company, and recovered a judgment in the hustings court of Roanoke city for $5,000, and the case is now before us upon certain errors assigned during the progress of the trial.

The first bill of exceptions is to the admission of evidence that the father and mother of intestate were both living, and that the news of the death of her son threw the mother into a highly nervous condition, so that her death was momentarily expected, and from which she had not recovered at the time of the trial.

The second bill of exceptions is to the ad-mission of the testimony of Dr. Buckner, who stated that since the death of her son the mother had been in a very nervous state, and in a very "run-down condition, " due, in the opinion of the physician, to the death of her son, and that she suffered with a severe attack of bronchitis, probably caused by the nervous condition following the death of her son.

The objections to the admissibility of this evidence presented in bills of exception Nos. 1 and 2 may, with propriety, be considered in connection with the objection to plaintiff's instruction No. 6, which is as follows:

"The court instructs the jury that, if they believe from the evidence that the plaintiff is entitled to recover, they may assess damages for his killing at such sum as they may deem fair and just under all the circumstances of the case, such damages not to exoeed $10,000. The court further instructs the jury that, in ascertaining the damages, they are not limited to the mere pecuniary damages sustained by the parents of said Joseph Stevens, by the death of the said Joseph Stevens, but may add to such damages such sum as they may deem fair and just, by way of solace and comfort to his said parents, for the sorrow, suffering, and mental anguish occasioned them by his death."

Plaintiff in error contends that the evidence should not have been admitted, because —"First, the father being alive, the mother would not be entitled to receive, under the statute, any portion of the damage found by the verdict of the Jury. Second, that no special damage could be recovered for the physical condition of the mother of the plaintiff's intestate, because no such damage was claimed in the declaration. Third, because such damages were too remote, and the evidence in regard thereto was otherwise illegal and irrelevant."

As was said by Judge Staples in Railroad Co. v. Wightman's Adm'r, 29 Grat. 441: "The manner in which the damages are to be distributed is no concern of the defendant, and not under the control of the plaintiff. It is a question for the jury exclusively, not involved in the issue." The first objection is overruled.

Nor...