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

• Decision Date: 21 November 1907
• Citation: 107 Va. 515,59 S.E. 1091
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. BONDURANT'S ADM'R.

59 S.E. 1091

107 Va. 515

NORFOLK & W. RY. CO.

v.BONDURANT'S ADM'R.

Supreme Court of Appeals of Virginia.

Nov. 21, 1907.

Rehearing Denied Jan. 16, 1908.

1. Master and Servant— Existence of Relation.

Whether a student locomotive fireman is an employe of the railroad depends upon the circumstances of the particular case.

2. Same — Obtaining Position by Fraud — Liability of Master for Injuries.

Where a minor by knowingly misrepresenting his age is accepted by a railroad as a student fireman, though the rules of the company prohibit the accepting of minors for train service, he is a trespasser, or at most a bare licensee, and not a servant, and the railroad is not liable for his death in a collision, since it would be liable only for injuries willfully or wantonly inflicted upon him.

3. Trial—Instructions—Conformity to Evidence.

Requested instructions, not based on the evidence, should not be given.

[Ed. Note.—For cases in point, see Cent Dig. vol. 46, Trial, §§ 596-612.]

4. Railroads—Care as to Licensees.

A railroad does not owe to a licensee the duty of employing competent servants to run its trains.

5. Writ of Error—Petition—Specification of Errors—Sufficiency.

Where the petition for a writ of error clearly points out the points relied on for reversal, and the instructions asked are covered by the bills of exceptions, it is sufficient, although it is not specifically stated in the petition that the ruling of the court upon any particular point is assigned as error.

[Ed. Note.—For cases in point, see Cent. Dig., vol. 2, Appeal and Error, § 1961.]

Error to Circuit Court, Amherst County.

Action for death by the administrator 6f C. N. Bondurant against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

The following instructions were given for plaintiff:

"(1) The court instructs the jury that if they believe from the evidence that the defendant, through its duly authorized agents, issued and delivered to the plaintiff's intestate, C. N. Bondurant, the written instrument or permit which had been introduced in evidence, marked 'Exhibit A, ' with the testimony of J. J. Whitlow, and if they further believe from the evidence that at the time of his injury and death he was upon one of the defendant's freight engines for the purpose and on the division set forth therein, then it was the duty of the defendant, and of its agents and servants in charge of and operating trains of cars, upon which he was not at the time of his injury, to exercise ordinary care in the operation thereof, so as not to unnecessarily endanger him, and their failure to perform that duty would be negligence.

"(2) The court instructs the jury that if they believe from the evidence that the permit mentioned in instruction No. 1 was obtained by the plaintiff's intestate by falsely representing himself to be over the age of 21 years, then, while the said intestate was riding upon the defendant's engine, by virtue thereof, the defendant owed him the exercise only of such ordinary care as it would have owed him had he in fact been over the age of 21 years; but it did owe him such ordinary care as it would have owed him if an adult, notwithstanding such misrepresentation.

"(3) The court instructs the jury that if they believe from the evidence that the plaintiff was killed by the negligence of the defendant, its agents and servants, as set forth in the declaration, they must find for the plaintiff, notwithstanding the waiver by the plaintiff's intestate as contained in the permit, mentioned in instruction No. 1."

The following instructions were requested by defendant and refused by the court:

"(1) The court instructs the jury that under the permit issued by the defendant to C. N. Bondurant, and upon which he was riding at the time of the accident complained of, said Bondurant was not a servant of the defendant, but only a licensee, to whom was not due the care and caution owing by a master to a servant.

"(2) The court instructs the jury that a railway company does not owe to a licensee the duty of employing competent servants to manage its trains, or to run them in a particular manner, or at a particular rate of speed.

"(3) The court instructs the jury that if they believe from the evidence that the plaintiff's intestate, in order to enter the service of the defendant company, falsely represented that he was over 21 years of age, when he knew, or had good reason to know, that such statement was not true, and that the rules of the defendant forbade the employment of minors in its operating department, they must find a verdict for the defendant.

"(4) The court instructs the jury that if they believe from the evidence that C. N. Bondurant made application for the service as fireman with the defendant on May 3, 1906, and stated in said application that he was over 21 years of age j that said statement was false, and that Bondurant knew, or had good reason to know, that the same was not true; that the defendant's rules forbade the employment in its train service of minors; that, acting upon the statement as to his age, and with no knowledge of its falsity, the defendant issued to said Bondurant the permit set forth in the declaration; and that while upon one of defendant's engines pursuant to said permit he received injuries which resulted in his death—then the jury must find a verdict for the defendant."

F. S. Kirkpatrick, for plaintiff in error.

Lee & Howard, for defendant in error.

KEITH, P. C. N. Bondurant, the plaintiff's intestate, was killed In May, 1900, by a rear-end collision upon the Norfolk & Western Railroad, under circumstances which, it is conceded, would, as against a passenger or an employe of the railroad company, have constituted actionable negligence.

The young man who was killed desired to become a fireman on the Norfolk & Western Railroad, and to learn the duties of that position filed an application on May 3, 1906, in which, In reply to one of the printed questions, he stated that he was born on the 27th day of April, 1884, and was, therefore, on the date of the application in his twenty-second year. One of the rules of the company provides that "minors must not be employed without the written consent of parents or guardians on prescribed form, which must be filed with personal records, and must not under any circumstances be employed in the train service."

The evidence tends to show that, while young Bondurant may not have known of the precise terms of this rule he did know, and his attention was specifically directed to, the fact that the rules of the company forbade the employment of infants.

Upon his written application a permit was granted to him, which is set forth in the declaration in the following words:

"Permit the bearer, C. N. Bondurant, upon presentation of this order duly signed by him and witnessed, to ride on freight engines of the company for the purpose of learning the duties of a fireman, for duty as a fireman in the service of the company hereafter.

"It is understood and agreed that Mr. C. N. Bondurant uses this permit at his own risk and expense, without compensation; thathe assumes all hazard and risk of personal injury and damages, whether arising from negligence of the Norfolk & Western Railway Company or its employes or otherwise; and that the Norfolk & Western Railway Company shall not be held liable for any injury so sustained or for any damages resulting therefrom.

"This permit is not good on passenger engines, and expires June 3, 1906.

"L. P. Ligon, Division Master Mechanic.

"I, C. N. Bondurant, the applicant above mentioned, do hereby accept and agree to the terms and stipulations of the above permit, and I do certify that I am more than twenty-one years of age.

"Witness my signature this 3d day of May, 1906. C. N. Bondurant.

"Witness: C. M. Mays."

It was under these circumstances that C. N. Bondurant was upon the engine at the time he received the fatal injury for which his administrator brings this suit.

At the instance of the defendant in error, four instructions were given to the jury, to which the plaintiff in error excepted; and four instructions were asked for by the plaintiff in error, to the refusal of which on the part of the court an exception was also noted.

The controlling question is: What was the duty and degree of care owed by the railway company to defendant in error's intestate under the circumstances of this case?

The theory upon which the case was tried, the verdict rendered, and the judgment entered was that there was a contractual relation between the deceased and the railway company, by which he became an employe to whom the defendant owed the duty of ordinary care; in other words, that the relation existing between Bondurant and the company was that of master and servant, with all the mutual duties and responsibilities which that relation implies. The contention on behalf of the plaintiff in error is that young Bondurant was a trespasser, to whom the company owed no duty, except not to injure him wantonly, recklessly, or willfully.

A student fireman may, or may not, be an employe. Whether he is or not in a particular case depends upon circumstances.

In Weisser v. Southern Pacific Ry. Co., 148 Cal. 426, 83 Pac. 439, cited by defendant in error, it was held that a student brakeman, on freight trains of defendant at his own request and by permission of defendant, for the purpose of gaining experience to render him competent to act as a regular brakeman, and who was entirely subject to defendant's orders, and was required to perform such ordinary duties of brakeman as were allotted to him, was a fellow servant of the other brake-men, although he was receiving no pecuniary compensation.

So, in Barstow v. Old Colony R. Co., 143 Mass. 535, 10 N. E. 255, it was held that if a person undertake voluntarily to perform serv ice for a corporation, and the agent of such corporation assents to his performing such service, he stands in the relation...