Powhatan Lime Co v. Whetzel's Adm'x

• Decision Date: 11 November 1915
• Citation: 86 S.E. 898,118 Va. 161
• Parties: POWHATAN LIME CO. v. WHETZEL'S ADM'X.
• Court: Virginia Supreme Court

86 S.E. 898

118 Va. 161

POWHATAN LIME CO.

v.WHETZEL'S ADM'X.

Supreme Court of Appeals of Virginia.

Nov. 11, 1915.

Rehearing Denied Nov. 26, 1915.

Error to Circuit Court, Shenandoah County.

Action by Whetzel's administratrix against, the Powhatan Lime Company. From a judgment for plaintiff, defendant brings error. Affirmed.

The witness Crismore testified to accidents to employe's from the cable which moved, the cars, while walking across the trestle.

Robert H. Talley, of Richmond, and Walton & Walton, of Woodstock, for plaintiff in error.

Tavenner & Bauserman, of Woodstock, for defendant in error.

KELLY, J. In this action H. S. Whetzel's administratrix recovered a judgment against the Powhatan Lime Company, which is here on a writ of error. For convenience we shall refer to the appellee as the plaintiff and to the appellant as the defendant, according to their status in the lower court.

The plaintiff's intestate, who was and had been for some years an employe of the defendant, was killed while in its service on July 31, 1913. The defendant operates an extensive plant for the manufacture of lime and crushed stone. At one end of its operation is a large quarry, considerably below the surface of the ground, from which rock is supplied for the kilns and the crusher. The stone and dirt from the quarry is conveyed in cars over a narrow track to the top of a steep incline by means of a cable and hoisting engine. From the top of the hill to which they are thus brought, the cars are switched to different tracks according to their contents and consequent destination. Cars loaded with dirt go to the dirt track and on to the earth dumps, those loaded with one kind of stone go to the kilns, and those loaded with another kind of stone go to the crusher. The cars for the crusher run by gravity a distance of something over 500 feet from the hoister, crossing a trestle 10 to 25 feet high and 255 feet in length, and are dumped near the crusher along the base of the trestle. In making this descent, as in coming up from the quarry, they are controlled and operated by cable from the hoisting engine. Sometimes these cars could be dumped by one man, who was the regular dumper, but often he had to have a man to help him. Whetzel was on his way down to the crusher, riding a loaded car, to assist in dumping it. when the trestle gave way, causing the car to go over and Whetzel to fall or jump to the ground. His death resulted. It is charged in the declaration, and there was evidence to justify the jury in finding, that this trestle was weak, insufficiently supported, in bad repair and unsafe, and that this condition was known to the defendant.

There were 11 assignments of error. We will dispose of these in their order, and in connection therewith will make such further statement of the facts as may appear necessary for a correct understanding of the questions involved, having due regard for the rule of evidence to be applied in this court, where the testimony is conflicting.

1. The first and most important assignment of error rests upon the refusal of the trial court to set aside the verdict and grant a new trial. Three distinct grounds are relied upon to support this assignment.

(a) It is claimed that the undisputed evidence shows that the plaintiff's intestate had been expressly ordered not to ride the cars over the trestle on which the accident occurred, and had been warned of the danger of doing so. Counsel for defendant conceded that the evidence to establish the promulgation of a general order or rule against riding the cars was contradicted, but contends that Whetzel had been personally ordered not to ride them, and that the evidence in this respect is free from conflict. Richards, the company's superintendent, did testify to a single instance in which he claimed to have told Whetzel that it was against orders to ride the cars, Fischel, the operator of the hoister, also testified to a statement alleged to have been made to him by Whetzel, in which the latter said Richards had told him not to ride, and Smith, a colored employe, testified to another conversation in which he said Whetzel had expressed the opinion that riding the cars was dangerous, and added that the men "had been told often enough about it" No third party was present when these three separate alleged conversations took place. Whetzel is dead, and therefore from the necessity of the case, neither of these three witnesses is in express terms either contradicted or corroborated by any other witness. The testimony of these witnesses, however, upon this point, is in striking conflict with the weight of the evidence as to the practices of the men and the method of handling the cars over the trestle, all with the full knowledge and acquiescence of Richards and others superior in authority to Whetzel. It was safer to ride the cars (even if the men could have walked and kept up with them) than to attempt to follow along behind them over the open trestle with the cable a constant menace; and to have walked around over the yards from the switch to the crusher would have resulted in a loss of time, which the evidence plainly shows the defendant neither contemplated nor would have permitted. Even under the quicker method of riding the cars, the defendant repeatedly insisted upon increased expedition in the dumping operations and complained that the cars were not returned as quickly as they should be. Richards testified at a coroner's inquest held shortly after the accident, and at that time, upon being asked to name any of the employe's other than Whetzel whom he had notified not to ride the cars, answered:

"I ordered Mr. Sonner since the accident, and also a new man the next day after the accident."

At the trial of this case he testified that he had ordered others than Whetzel not to ride the cars. This statement is seriously discredited by opposing testimony. The witness Sonner, who had charge of the dumping operations for the six months just preceding Whetzel's death, testified that everybody that he ever dumped with rode with him; that no notice was ever given to him at any time, as to whether or not a man should ride those cars, until after Whetzel's death; that he himself rode them nearly all the time and without objection; that Richards was standing right around and saw him "lots of times"; that McCoy (another superior officer) saw him; that the reason for riding the cars was "to save time"; and that "they were always fussing then about our taking too much time to dump them." A number of witnesses, all of whom either had assisted as helpers or dumpers, or were in position to know the conditions, testify strongly to the fact that the cars were regularly ridden by the dumpers over this trestle and without any protest at any time from Richards or other officials of the company.

If, however, it be conceded that the order which Richards claims to have given to Whetzel was in fact given, the case is clearly within the influence of those authorities which hold that a rule or order continuously disregarded, with the knowledge and acquiescence of the master, is to be considered as waived by him. The law in this respect is concisely and comprehensively stated in the case of Southern R. Co. v. Johnson, 111 Va. 501, 69 S. E. 325, Ann. Cas. 1912A, 81, as follows:

"The correct principle deducible from the authorities with respect to waiver or suspension of a rule by way of estoppel from acquiescence may be stated as follows: 'The burden is upon the plaintiff to establish three elements, all of which must concur: (1) The violations must have been so frequent as to become habitual; (2) the violations must have been known, or by the exercise of ordinary care should have been known, by the employe, or employes, charged with the duty of enforcing the rules involved; (3) the employe charged with the duty of enforcing the rules, being thus aware of its habitual violation, took no steps to secure and compel an observance'"—citing Wright v. Southern Ry. Co., 101 Va. 36, 42 S. E. 913, Driver v. Southern Ry. Co., 103 Va. 650, 49 S. E. 1000, and Lane Bros. v. Seakford, 106 Va. 93, 55 S. E. 556.

See, also, comprehensive note to Southern R. Co. v. Johnson, supra, 111 Va. 490, 69 S. E. 323, Ann. Cas. 1912A, 81. The instant case is brought fully and clearly within the doctrine, as stated in the above authorities, by evidence which was not only sufficient to warrant the jury in its conclusions, but which, as it seems to us, was overwhelming in its weight.

(b) It is further claimed that the verdict was wrong and should have been set aside because, independent of any special warning, the plaintiff's intestate knew or ought to have known of the danger, and therefore must be held to have assumed the risk. This we think was a question for the jury. There is, it is true, abundant evidence to show that the trestle was unsafe, but the particulars wherein it was unsafe were not so open and obvious, and the manifestation of its weak and rickety condition not so apparent and...