Pritt v. West Virginia Northern R. Co.
| Decision Date | 14 December 1948 |
| Docket Number | 10047. |
| Citation | 51 S.E.2d 105,132 W.Va. 184 |
| Parties | PRITT v. WEST VIRGINIA NORTHERN R. CO. |
| Court | West Virginia Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Syllabus by the Court.
1. An employee of a railroad company, the termini of which are within this State, the principal traffic of which is transported in interstate commerce over the lines of a connecting interstate carrier, and who assists in placing a car at a coal tipple on a spur leading from such intrastate railroad line, and under its control, which placed car was received from an interstate carrier, and was intended to be and was loaded and moved in interstate commerce, is, under Section 51 of the Federal Employers' Liability Act as amended (U.S.C.A., Title 45, Section 51), employed in the furtherance of interstate commerce, and entitled to maintain an action under the Federal Act, aforesaid, for injuries sustained in such employment, and for which, under said Act, the carrier is held responsible in damages.
2. In the trial of an action at law instituted under the Federal Employers' Liability Act, the verdict of the jury on the factual question of negligence involved therein, will not be disturbed in this Court, unless the same is believed to be plainly wrong, or without any evidence to support it.
3. An award of compensation by the State Compensation Commissioner, under the compensation laws of this State, on account of injuries sustained by a person employed in interstate commerce, as defined by the provisions of the Federal Employers' Liability Act, is void, and does not bar an action, under said act, against the employer, by the person so paid compensation under such void allowance thereof.
Parrack, Snyder & Wehner, F. E. Parrack and Charles V. Wehner, all of Kingwood, for plaintiff in error.
Milford L. Gibson, of Kingwood, Wayne K. Pritt, of Parsons, and Jacob S. Hyer, of Elkins, for defendant in error.
West Virginia Northern Railroad Company prosecutes this writ of error to a judgment of the Circuit Court of Preston County, for the sum of Twenty Thousand Dollars, in an action at law pending in said court, in which George Pritt was plaintiff and said railroad company was defendant. There was a jury trial, and the judgment aforesaid was entered on the verdict returned by the jury, and after motion to set aside the verdict had been made in the trial court and overruled. Due and proper exception was taken to the ruling of the court, both as to the said verdict and the judgment entered thereon.
Plaintiff in error, in its petition for this writ of error, assigned twenty separate grounds of error; and in its brief filed in this Court assigned thirty-five grounds of error. Without intending to ignore such assignments, we are of the opinion that our decision must depend on our conclusions on three fundamental questions raised in the court below, and raised and argued here. There questions are: (1) Was the plaintiff, at the date of his injury, employed in interstate commerce and thus entitled to rely on the provisions of the Federal Employers' Liability Act enacted by the Congress of the United States, 45 U.S.C.A. § 51 et seq., which admittedly controls the recovery of damages for injuries sustained while the injured person is employed in interstate commerce; (2) was the defendant guilty of an act of negligence which was the proimate cause of plaintiff's injuries, and on which the plaintiff was entitled to recover damages under the provisions of the Federal Employers' Liability Act aforesaid; and (3) did the fact that the defendant was a contributor to the Workmen's Compensation Fund of this State, and the further fact that the plaintiff, following the injuries for which he seeks damages herein, applied to and received benefits from said fund, based on such injuries, estop him from prosecuting this action, on the contention that such award of compensation was res judicata of all questions involved herein, except that of negligence.
Other points of error will be discussed, but we will give first consideration to the three questions stated above.
The West Virginia Northern Railroad extends from Kingwood to Tunnelton, and is located entirely within Preston County, West Virginia. It connects with one of the main lines of the Baltimore and Ohio Railroad at Tunnelton. A number of coal mines are located and in operation along its line, and switches or spurs lead from its main track to such coal operations. The production from said mines is carried over its line to Tunnelton, where it is delivered to the Baltimore and Ohio Railroad, and the great volume thereof, estimated at ninety percent, enters interstate commerce. On the other hand, some of such coal production and other freight is delivered to points within the State and constitutes intrastate commerce.
The point of the accident in which the plaintiff was injured was on a switch or spur leading from the defendant's main line to a coal tipple owned by the Blake Coal Company, over which the defendant had the right to operate its equipment. It was customary for the defendant railroad company to collect empty coal cars from the exchange track of the Baltimore and Ohio Railroad at Tunnelton, and then distribute such cars among the several coal operations along its line. On March 7, 1946, it used two locomotives to distribute twenty empty coal cars in the manner aforesaid, and a short distance out of Tunnelton, and in the direction of Kingwood, all said empties were assembled as one train, with one locomotive in front and the other in the rear. When the siding or spur leading to the tipple of the Blake Coal Company was reached, the conductor of the train ordered that the empty car immediately behind the front locomotive be cut out of the train and placed under the tipple of the coal company, and this was done. The car so placed was a Norfolk and Western Railway Company car numbered No. 73179. The car was of more than the height of the average car used in coal traffic. According to the testimony, it was twelve feet ten and one-fourth inches from the top of the railroad rail to the top of the brake wheel of the car, and the distance from the said rail to the bottom of the chute of the tipple under which the car was placed, was twelve feet eleven and one-half inches, so that the clearance was about one inch. Such clearance, when cars of average height were used, was from twenty-two to twenty-three inches. On each side of the railroad siding at the point where it first passed under the tipple were upright timbers, and the clearance between the side of the car and the upright timbers was about eight inches, and insufficient to permit a passage by clinging to the side of the car. It is in evidence that cars of the height of the car, No. 73179, had been placed under the said tipple on numerous occasions; that the tipple had been in use for twenty years, and that no injuries had, up to the date of plaintiff's misfortune, been suffered by anyone. Cars of that height had been placed under said tipple while plaintiff had been in defendant's service as a brakeman.
Plaintiff was first employed by the defendant railroad company in January, 1942, and worked until July of that year, when he was called into the Armed Services of the United States. On his discharge from that service he resumed his employment in October, 1945, and at the date of his injury, March 7, 1946, was employed as a brakeman. As heretofore stated the train of twenty empty cars was assembled on defendant's line, a short distance outside of Tunnelton, for the purpose of distributing said cars among the coal operations along its line, and plaintiff was the brakeman on said train whose duty it was, under the direction of the train conductor, to assist in cutting off and placing cars, throw and close switches, and perform such other work as might be required of one holding that position. Plaintiff was ordered to assist in placing a car under the tipple of the Blake Coal Company, and the car so ordered placed was the front car in the train, and was of the number and height heretofore stated. This car was cut off the train and carried by the locomotive beyond the point of the switch leading into the Blake Coal Company tipple. Plaintiff then opened the switch, and when the car was cut off from the locomotive and passed over the switch and onto the siding it was boarded by plaintiff so that he could apply the brakes thereon, and place the car in proper position under the tipple. The brake wheel was on the front of the car in the direction in which it was moving, and there was a steel ladder to the left of the brake wheel when the brakeman stood on the small platform on the front of the car from which the brake wheel was operated. Plaintiff alleges and testifies that in boarding the car, and in operating the brakes, he did not observe or realize the height of the car, or his danger, until he was within fifteen feet of the tipple; that he had his arm around the brake wheel, and before he could change the position of his arm and move to a place of safety his arm came into contact with some part of the tipple, and he was thrown from the car on the flat of his back, between the rails of the track, a portion of the car passed over him, and he was pinned to the ground by a safety bar under the car, connected with the brake, which, to effect his release, necessitated raising the car by the use of a jack owned by the coal company, but readily available. As a result of this accident, the plaintiff suffered grave and serious injuries, the nature of which was testified to by many witnesses, and as to which there is no conflict in the evidence. Complaint is made in plaintiff's declaration that the defendant had not...
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