Riley v. W. Va. Cent.

• Citation: 27 W.Va. 145
• Court: West Virginia Supreme Court
• Decision Date: 28 November 1885
• Parties: Riley v. W. Va. Cent. & P. Railway Co.

27 W.Va. 145

Riley

v.W. Va. Cent. & P. Railway Co.

Supreme Court of Appeals of West Virginia.

Submitted September 3, 1885.

Decided November 28, 1885.

When a railroad company puts a superintendant, foreman or other employe in its place to discharge some duty which it owes to its servants or employes, as to such duty such superintendent or other employe is not a co-servant but the representative of the company, and as to such duty the company is bound by the acts or omissions of such middleman the same as though the acts had been done or omitted by the company itself, (p, 156.)

2. Whenever such company delegates to another the performance of a duty to its servants, which it has impliedly contracted to perform itself, or which rests upon it as an absolute duty, it is liable for the manner in which that duty is performed by the middleman whom it has selected as its agent, and to the extent of the discharge of these duties by the middleman he stands in the place of the company, but as to all other matters he is a mere co-servant, (p. 157.)

3. The question in such case is not whether the company reserved to itself any oversight or discretion, but whether it did in fact clothe the middleman with power to perform its duties to the servant injured, (p. 157.)

4. When a servant enters into the employ of another he assumes all the risks ordinarily incident to the business of such employment; but the master is not justified in exposing the servant to extraordinary risks or hazards not naturally incident to the service in which he is employed, (p. 158.)

5. It is the duty of a railroad company not only to furnish a reasona-bly well constructed and safe railway and track for the use of its employes, but it must also exercise continued supervision over the same and keep them in good and safe repair and condition, (p. 159.)

6. If such company or its servant to whom it has delegated the performance of this duty, suffers such railway or track or its cars and machinery from any cause to become dangerous and unsafe, and this condition is known to the company or such servant, or by the exercise of due care or diligence might have become known to it or such servant, and injury results therefrom to one of its servants other than the one having such delegated power without fault on his part, while in the performance of his duty, the company is responsible to the servant so injured, (p. 160.)

7. In an action by an employe against a railroad company for negligent injury to his person the plaintiff may recover the expenses of his cure, the value of his time lost during his cure, and a fair compensation for his physical and mental suffering caused by the injury as well as for any permanent reduction of his power to earn money, (p. 161.)

8. Contributory negligence is such negligence on the part of the plaintiff as directly contributes to and in part causes the injury, (p. 164.)

9. It is the settled law of this State that the burden ot proving contributory negligence rests upon the defendant, (p. 165.)

10. In an action by an employe against a railroad company for an injury to the plain tiff caused by a particular stump left by the de- fendant in dangerous proximity to its railway it is not error to reject testimony offered by the defendant, which tends to showr generally, that the defendant's railway in its construction compares favorably with other railroads, (p. 166.)

11. A case in which the judgment of the circuit court is reversed, because the court refused to give to the jury an institution asked by the defendant, which a majority of this Court think, under the circumstances and evidence in the case, should have been given to the jury. (p. 152, 163.)

W. C. Clayton, G. E. Price and W. P. Whyte for plaintiff in error.

F. M. Reynolds and 0. E. Daily for defendant in error. Snyder, Judgs:

Action of trespass on the case brought February 16, 1883, in the circuit court of Mineral county by James H. Riley, a minor eighteen years of age, hy his next friend against The West Virginia Central and Pittsburgh Railroad Company, for injuries to the plaintiff while acting as a brakeman on a train of the defendant. The case was tried by jury and a verdict returned in favor of the plaintiff for $3,500.00. The defendant moved the court to set aside the verdict and grant it a new. trial, which motion the court overruled and on January 21, 1884, rendered judgment for the plaintiff for the damages found hy the verdict of the jury. During the trial the defendant took several bills of exceptions, and to review the rulings therein excepted to it obtained this writ of error and supersedeas.

There was a demurrer to plaintiff's declaration which the court overruled. This was assigned as error, but counsel for the defendant, the plaintiff in error, have not argued that assignment in this Court, and as the declaration appears to be entirely sufficient, it must be field that the demurrer was properly overruled.

All the testimony is certified. The evidence of the plaintiff tended to prove the following facts: On May 3, 1882, the plaintiff, then eighteen years of age, while in the employ of the defendant and acting as brakeman on a train consisting of one engine and tender was struck by a stump standing on the side of the railway about half way between Mineville and Shaw and knocked off the train, and in falling to the ground came in contact with the engine, whereby he was so injured that one ot his legs had to be amputated, and he was otherwise bruised and hurt. The grade of the road was over 150 feet to the mile, and the train was backing down the grade with the tender in front of the engine at the rate of from ten to fifteen miles per hour. The plaintiff was not a regular brakeman, but at different times before the injury he had acted as brakeman three days and had been working on the defendant's road in various ways from the preceding October. He was directed by the conductor to go on the train, from which he was knocked off, as a brakeman, and after he and the conductor had put down the brakes he was told by the fireman to look at the brakes and see whether the wheels were sliding. He was then standing on the footboard between the engine and the tender nearest the brake-handle, and just as he was in the act of looking over to see the wheels he was struck by the stump across the forehead and knocked off. The road ran along the hill side with a cut or bank on the one side and open on the other side. It is the fireman's duty to look after and prevent the wheels of the tender from sliding, but when the train consists of the engine and tender only, it is usual for the hand nearest the brake to attend to that matter. The plaintiff being thus told to look and see if the wheels were sliding, he took hold ot the hand-holds of the engine and tender and looked over on the hill-side of the train, but before he had leaned out far enough to see the wheels he was kocked off. In order to. see the wheels it was necessary to project his head six inches beyond the side of the engine or tender. Where the stump stood there was a curve in the road so that it could not be seen more than thirty or forty yards. The stump was standing in loose, loamy soil which by repeated rains and wet weather had formed a slip or slide around the stump and it gradually slipped into the road closer to the track. As the slip moved down the bank, the rock and dirt fell on the track and was removed by the section men, but the stump remained. About three or four weeks before the injury to the plaintiff, the stump had slipped so near the railway that it would not clear an engine more than from four to six inches. The top ot it was inclined to the track and it was about two and a half to three feet high, the bottom of it was about four feet above the road-bed and by the removal of the rock and dirt in trout ot it the stump was left standing upon a nearly perpendicular bank four feet high above the track with the top of it within from four to six inches of the side of a passing car or engine. Two or three weeks before the injury to the plaintiff this stump came near knocking another brakeman off the coal-hoppers and he told the section boss and his men that they ought to take it out, but it was not done until the evening after the plaintiff was hurt, and then it was taken out by the defendant's section men. When the plaintiff was struck he fell and became unconscious and could not tell afterwards what hit him, but there was a bruise or mark on his forehead as it he had been struck there by something. He was found, after the train had been stopped, about twenty-five or thirty yards below the stump on the track; and there were marks on the ground showing that the plaintiff had first fallen nearly opposite the stump. He was then taken to his brother's, where his leg was amputated. The evidence of the plaintiff tended to prove other facts, but they are not in my view ot this case material.

The defendant offered evidence tending to prove that the plaintiff was cautioned not to look out or he would get hurt; that there would have been no danger in looking over at the wheels from the open side of the train; that no one saw the plaintiff when he was hurt or struck; that the stump stood in a very solid bank of dry, red clay, and there was no slip there; that dirt had fallen from the roots which wrere deeply imbedded, but the stump had never moved; that it would clear a car about a foot and a half; that in the fall before the injury the master ot construction and repairs of the defendant's road fastened a test-board to a Pullman car six inches wider than the car and it passed over the road without touching anything; that a Pullman car is ten feet six inches wide, ordinary cars are nine feet six inches, and the engine and tender are not so wide; that an inspector went over and examined the road frequently, and that the road was as safe for trains and train-men as any road. The defendant also offered other evidence...