Richmond & D. R. Co v. George

• Decision Date: 09 July 1891
• Citation: 13 S.E. 429,88 Va. 223
• Court: Virginia Supreme Court
• Parties: Richmond & D. R. Co. v. George.

13 S.E. 429

88 Va. 223

Richmond & D. R. Co.

v.George.

Supreme Court of Appeals of Virginia.

July 9, 1891.

Injuries to Employe—Defective Cars — Negligence or Fellow-Sekvant — Objection not Raised Below.

1. In an action for personal injuries by a brakeman against a railroad company, it appeared that plaintiff, on a car on the front end of the train, attempted to descend to uncouple the engine. The bottom rung of the car ladder was missing, and, while feeling for it with his foot, the engineer, without the customary signal, suddenly backed the engine against plaintiff and injured him. The night was dark, and the bumper on the end of the car was broken off, so that the tender came up close to it. Plaintiff did not know the bumper had been broken off, and it was shown that the train was made up under the supervision of the regular car inspector, who was not called as a witness by the company. Meld, the defective condition of the car was the proximate cause of the injury, and defendant was liable, although the negligence of a fellow-servant, the engineer, contributed to the injury.

3. The objection that the damages are excessive cannot first be made in the supreme court.

Error to circuit court, Franklin county; S. G. Whittle, Judge.

Action by George against Richmond & Danville Railway Company for personal injuries. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.

Mr. Blackford, for plaintiff in error.

Green & Miller, for defendant in error.

Lewis, P. The real merits of the case in this court lie within a narrow compass. The action was for injuries received by the plaintiff while in the employ of the defendant company as a brakeman. The charge in the declaration was that the injuries were caused by the negligence of the defendant in failing to provide suitable and safe cars and other appliances for the performance of the work required of the plaintiff in the course of the employment. The jury found accordingly, and, judgment having been entered in conformity with the verdict, the defendant obtained a writ of error.

The accident occurred between 10 and 11 o'clock in the night, on the 12th of March, 1889. At that time the plaintiff was employed as front brakeman on a "mixed train, " running between Elba Junction and Rocky Mount, a distance of about 35 miles. When the train, on the occasion in question, arrived at Rocky Mount, the plaintiff was riding on top of the front car, which was a box-car. It was his duty to descend from the train, upon its arrival at that point, and with his lantern to signal the engineer to "give slack, " by which is meant to slightly reverse the engine, in order to "slack the coupling, " that the pin may be "lifted, "and the front car uncoupled from the tender. The engine is then put away for the night in a house provided for the purpose. The evidence of the plaintiff was that in descending the ladder of the car next to the engine, to signal the engineer, he for the first time discovered that the bottom rung of the ladder was missing. " And in reaching down with my left leg, " he says, "trying to find the missing rung, which had been broken off, I brought my right thigh in a horizontal position, " when the engineer suddenly, without a signal, backed the engine. The result was that the plaintiff was caught between the tender and the car and very seriously and permanently crippled. It was customary for the engineer, and the rules of the company require him, to wait for the signal before backing. An examination of the car, immediately after the accident, disclosed the fact that not only was the front ladder defective, but that the car was otherwise unsafe, in that it was provided with a defective and inadequate bumper on the end next to the engine. " The bumper on a car, " says one of the defendant's witnesses, "is simply to give brakemen a chance to couple or uncouple, " by which was meant to enable the brakeman to go between the cars to couple or uncouple them with safety. Speaking of the car in question, the plaintiff testifies: "This car had no platform, and I do not think it had a good bumper. If it had had a bumper like the others, I would not have got mashed, because the distance between the tender and the car would then have been longer than my thigh, and I could not have been hurt." One of the defendant's witnesses, the engineer of the train, testified that there would still be room enough to couple or uncouple with two or three inches off the bumper, but that if the whole bumper was off it would be different. A witness for the plaintiff, however, who was present when the accident occurred, and whose evidence is uncontradicted, says he noticed a piece of the bumper was off, and that, when he saw it, he remarked it was a wonder the plaintiff had not been killed. "It looked to me, "he says, "as if there was five or six inches of the bumper broken off. It looked shivered, not square off." The plaintiff also testified that Orange, one of the brakemen on the train, toldhim shortly after the accident that he examined the car the next day, and that about tour inches of the bumper were missing. This, Orange, as a witness for the defendant, denied; but in the course of his examination he admitted he could not tell how much was missing. There is other evidence to the same effect. But, without stopping to review it, it is enough to say that, viewing the case as we must, in the light of the familiar rule applicable to a demurrer to evidence, —the evidence, not the facts, being certified, —it is established that not only was the car defective, but that but for these defects the misfortune could not have...