Rash v. Norfolk, (No. 8769)

• Decision Date: 01 November 1938
• Docket Number: (No. 8769)
• Citation: 120 W.Va. 540
• Court: West Virginia Supreme Court
• Parties: William Rash, Adnw. v. Norfolk & WesternRailway Company

120 W.Va. 540

William Rash, Adnw.

v. Norfolk & WesternRailway Company

(No. 8769)

Supreme Court of Appeals of West Virginia.

Submitted October 4, 1938.

Decided November 1, 1938.

1. Mastek and Servant

Risks arising out of the negligence of a fellow servant may, under the Federal Employers' Liability Act, 45 U. S. O. A., sees. 51-59, be assumed by an employee, where he has observed the same, or the risk is a known and obvious one, and he has an opportunity to avoid the same.

2. Master and Servant

In an action under the Federal Employers' Liability Act, 45 U. S. C. A., sees. 51-59, where an employee of a railway company is being transported to his work on a motor car operated over its track and, through the negligence of a section foreman, in the face of traffic; and the approach of a locomotive on the same track is discovered; and the employee is ordered by his foreman to leave the car at a time when he may do so in safety and avoid injury, and, in the absence of reasonable excuse or explanation, fails to do so, and a collision occurs resulting in his death, he will be held to have assumed the risk of injury as a matter of law.

3. Master and Servant

Where an employee of a railway company is being transported to his work on a motor car operated on its track which collides with a locomotive operated by the company, negligence in the operation of either the motor car or the locomotive will not justify the1 recovery of damages for the death of the employee, resulting from such collision, where said employee, with full knowledge of the risk involved in such negligence, voluntarily assumes the same at a time when he could, with safety, have avoided the danger therefrom.

Error to Circuit Court, Mercer County.

Action under the Federal Employers'; Liability Act, 45 U. S. C. A. §§ 51-59, by William Rash, administrator of the estate of Noah Trump, deceased, against the Norfolk & Western Railway Company to recover for the death of Noah Trump, deceased. To review a judgment in favor of the plaintiff, the defendant brings error.

Judgment reversed; verdict set aside; new trial awarded.

W. W. Coxe, A. W. Reynolds and Sanders & Day, for plaintiff in error.

Lilly & Lilly and James S. Kahle, for defendant in error.

Fox, Judge:

This action was instituted in the circuit court of Mercer County under the Federal Employers' Liability Act by William Rash, administrator of the estate of Noah Trump, against the Norfolk & Western Railway Company on account of the death of the decedent, Trump, on the 10th day of March, 1937, and resulted in a verdict in favor of the plaintiff for the sum of $12,000.00. The motion to set aside the verdict was overruled and judgment entered thereon, to which action of the court the railway company prosecutes this writ of error.

Plaintiff's decedent was employed by the railway company as a section man in a crew of which his father was the foreman. They congregated at Ada, a station a short distance east of Bluefield, about seven-thirty a. m. on the date of decedent's death. The work which had been laid out for them on that day was the repair of a track some eight or ten miles east of Ada at a point near what is called in the record "MacKenzie's Siding", between which point and east to Roanoke, Virginia, the defendant operates a double track railway. The evidence discloses that it was customary to transport section men to their place of labor by the use of a motor-propelled car, and before placing this car on the track, they were required to ascertain the traffic movements on the railway, referred to as the "lay-out". Two section crews met at Ada on the morning of the 10th, and the foreman of one of them, a Mr. Pennington, inquired of the station agent what the "lay-out" was, and was advised that train Number 15, a fast passenger train coming from the east, was about on time, and that further information could be obtained at Blake tower, some five miles east of Ada. Immediately after an east-bound freight train passed Ada, the motor cars, operated by foreman S. J. Trump, and Pennington, were put on the east-bound track, that being the track over which trains traveled east, and moved over this track to Blake tower, where Trump inquired of the operator at that point as to train movements, and was told that no trains would pass on the west-bound track before 10 a. m. that day. These statements with reference to train movements both at Ada and at Blake tower were made in the presence of the crew of which S. J. Trump was the foreman, and including Noah Trump. Strange as it may appear, the fact that the fast passenger train Number 15, which that morning was running about seventeen minutes late, had not passed Blake tower at the time inquiry was made as to the movement of trains, seems to have been overlooked, as stated by several witnesses, including section foreman Trump, who testified that the trains they had in mind when making inquiries at Blake tower were freight trains and that passenger train Number 15 had been forgotten by them. Immediately thereafter, the motor car was moved to MacKenzie's Siding, where it was transferred from the east-bound track to the westbound track, and the car then proceeded in an easterly direction and in face of west-bound traffic. The car had moved some two thousand feet east from MacKenzie's Siding when, looking ahead, the five men occupying the motor car noticed smoke from a locomotive which apparently was pulling a train up-grade and in a westerly direction. On the motor car at that time were S. J. Trump, the foreman of the crew, Noah Trump, his son, L. M. Doby, I. N. Wimmer and C. G. Dooley. S. J. Trump immediately stopped the car. Doby jumped from the car, a flag was thrown to him and he proceeded on the track east in an attempt to warn the on-coming train. Section foreman Trump reversed the motor car and directed the other men to get off the car. The car started moving west and two of the men remaining thereon, Wimmer and Dooley, jumped therefrom to the side of the track, alighting in safety and on their feet. S. J. Trump remained on the motor car until he saw that he would be unable to outrun the on-coming train, and he too jumped from the car, after cutting off the motor and setting the brakes; but for some unaccountable reason, Noah Trump remained on the car, which was struck by the locomotive, resulting in Trump's being thrown from the car, causing injuries from which he died a few hours later. Doby had given a signal calling for a "service" application of brakes and the gradual slowing of the train, maintaining this signal until it was answered by two blasts of the locomotive whistle, whereupon he had given what is known as the "wash-out" signal, which calls for emergency efforts to stop the train. At the time this "wash-out" signal was given, the locomotive had about reached the point where Doby was standing. An...