Norfolk & W. Ry. Co v. Graham

• Decision Date: 17 November 1898
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. GRAHAM.

31 S.E. 604

96 Va. 430

NORFOLK & W. RY. CO.

v.GRAHAM.

Supreme Court of Appeals of Virginia.

Nov. 17, 1898.

Master and Servant—Negligence—Rules op Master.

1. Where a railroad employe went under a car to replace a brake, knowing that no one on the attached engine or elsewhere had been charged with any particular duty to look out and warn him of approaching danger, his failure to notify the engineer of his going under the car is such negligence as to prevent his recovery for injuries received by the starting of the engine, which was preceded by ringing the bell several times.

2. Failure of a railroad company to enact rules for simple duties, the danger attending the discharge of which is obvious, does not constitute negligence, unless, from the nature of the work in which the employes were engaged, the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity for such rules.

Error to hustings court of Roanoke.

Action by one Graham against the Norfolk & Western Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Watts, Robertson & Robertson, for plaintiff in error.

Moomaw & Woods and S. G. Williams, for defendant in error.

KEITH, P. Graham brought suit In the hustings court of the city of Roanoke to recover damages from the Norfolk & Western Railway Company for Injuries received by him while in its service. After the evidence had been introduced, the defendant company demurred. The jury rendered a verdict in favor of the plaintiff for $4,300, upon which the hustings court entered judgment, and the case is before us upon a writ of error to that judgment.

We shall only consider the third assignment of error, which involves an inquiry into the sufficiency of the evidence to sustain the verdict and the judgment.

Graham at the time of the injury was in the employment of the defendant as helper to the overhauler in the yards of the company at Roanoke. Upon the occasion of the injury of which he complains, Wilson, the foreman of the yard, directed Lowry, who is known as a "hostler, " to go with the engine and move a car to a place upon one of the tracks within the yard, at which a number of car wheels which needed repairing had been deposited. There were detailed, to aid him in this task, Graham, the plaintiff, Gilmore, Robinson, and Viar. They were directed to take with them a skid, which is a framework made of strong and heavy timbers, one end of which rests upon the car which is to be loaded, and the other upon the ground, thus forming an inclined plane, up and along which heavy articles are drawn. The engine was attached to the car, with its front or headlight towards it, and in this manner it was moved to the place where the wheels were to be loaded. The skid having been placed in position, chains were attached to the wheels at one end, and to the engine at the other. The method of loading was to back the engine (which had, of course, first been detached from the car), and thus draw the wheels up the inclined plane formed by the skid to the floor of the car. It was discovered that a brake rod which projected above the end of the car next to the wheels which were to be moved was in the way of the workmen, and Wilson, the foreman, directed it to be lowered, which was done by Graham and some of the other employes. The wheels were loaded without accident, and the men were then directed by Wilson to take the skid back to the place from which it had been gotten, and then move the car laden with the wheels to a designated point and further directed them not to leave the car until the brake rod had been replaced. Wilson then went to another part of the yard,...