Rash v. Norfolk & W. Ry. Co

• Decision Date: 10 December 1940
• Docket Number: No. 9058.,9058.
• Citation: 12 S.E.2d 501
• Court: Georgia Supreme Court
• Parties: RASH . v. NORFOLK & W. RY. CO.

12 S.E.2d 501

RASH .

v.NORFOLK & W. RY. CO.

No. 9058.

Supreme Court of the State of Georgia

Dec. 10, 1940.

Syllabus by the Court

1. There can be no recovery in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, where the evidence shows, as a matter of law, that the employee, with full knowledge of a hazard, created through employer's negligence, and the opportunity to avoid it with safety, nevertheless voluntarily assumed the risk.

2. "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 the 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." Pt. 3 Syl., Rash, Adm'r v. Norfolk & Western Railway Co., 120 W.Va. 540, 200 S.E. 583.

3. An order of this Court upon a question decided by the trial court is final, and the questions involved and adjudicated on a former writ of error generally cannot be reviewed on a second writ of error. Pt. 1 Syl., Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 1009, states an exception to this rule.

HATCHER, J., dissenting.

Error to Circuit Court, Mercer County.

Action under the Federal Employers' Liability Act by William Rash, administrator of the estate of Noah Trump, deceased, against the Norfolk & Western Railway Company to recover damages for death of the decedent. To review an adverse judgment, defendant brings error.

Judgment reversed, verdict set aside and new trial awarded.

W. W. Coxe, of Roanoke, Va., Sanders & Day, of Bluefield, and A. W. Reynolds, of Princeton, for plaintiff in error.

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

RILEY, President.

William Rash, administrator of the estate of Noah Trump, instituted this action in the Circuit Court of Mercer County under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, to recover damages for the alleged death of decedent. Defendant prosecutes this writ of error to a judgment against it in the amount of $7,000 based upon a jury verdict.

This action was tried twice. On writ of error to this Court, the judgment rendered on the first trial was reversed, the verdict set aside, and the case remanded for a new trial. See Rash, Adm'r v. Norfolk & Western Railway Co., 120 W.Va. 540, 200 S.E. 583, 584. Except for additional evidence introduced by both plaintiff and defendant, the evidence introduced on the instant trial of this case is substantially the same as that introduced at the first trial.

For convenience that part of the statement of facts contained in the opinion rendered on the first writ of error, which is supported by the instant record, will be stated verbatim as follows:

"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 westbound 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 west-bound 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 onthe 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 Jvvas given, the locomotive had about reached the point where Doby was standing. An emergency application of brakes was made and the train\'s speed further reduced, but not sufficiently to prevent its striking the motor car, and it ran about 175 feet beyond the point of collision. The train was running on a sharp left curve, and the engineer was not able to see the flag until close upon the point where the flagman stood; but the fireman, on account of his location...