Roberts v. Southern Railway

• Decision Date: 27 September 1928
• Citation: 151 Va. 815
• Parties: HARRY CARLTON ROBERTS v. SOUTHERN RAILWAY COMPANY.
• Court: Virginia Supreme Court

Page 815

151 Va. 815

HARRY CARLTON ROBERTS v. SOUTHERN RAILWAY COMPANY.

Supreme Court of Virginia, Richmond.

September 27, 1928.

Holt, J., having taken his seat on the Supreme Court of Appeals did not sit on the petition for rehearing in this case.

1. NEW TRIALS — Action by Servant of Railroad for Injuries Sustained when Highway Bridge upon which He was Working Fell with Him — Court Erroneously Setting Aside Verdict in Favor of Plaintiff — Case at Bar. — The instant case was an action by a servant of a railroad for injuries sustained when a highway bridge, which crossed the railroad, upon which he was working fell with him. Plaintiff alleged negligence on the part of the railroad in not lightening the superstructure of the bridge by removing the floor, negligence in removing the bolts which fastened the truss-arm to the bottom chord without fastening them in some other way, and negligence of the defendant in not placing a bent or false work beneath the bridge to support it while it was being renewed. The evidence was conflicting on all the specific allegations of omission on the part of the defendant. Defendant relied on the "unbending test" of negligence doctrine, and also that the danger to plaintiff was open and obvious to him.

Held: That the jury having found a verdict according to law, supported by the evidence, notwithstanding the erroneous instructions of the court, the verdict should not have been set aside by the trial court.

2. MASTER AND SERVANT — Assumption of Risk — Plaintiff Engaged in Work upon a Bridge which Fell with Him — Case at Bar. — In the instant case plaintiff was engaged in work upon a bridge consisting of a single span sustained and held in place by a truss without underneath supports. Plaintiff was unquestionably in a place of danger as the timbers were being taken out and renewed.

Held: That plaintiff assumed the ordinary risks attendant upon such an undertaking.

3. MASTER AND SERVANT — Assumption of Risk — Safe place to work — Plaintiff Engaged in Work upon a Bridge which Fell with Him — General Doctrine Does not Apply — Case at Bar. — The general doctrine of the law of master and servant that it is the duty of the master to furnish the servant with a safe place in which to work does not apply, or applies only in a modified form, to a workman engaged with others in making repairs to a large structure, such as a bridge, the condition of which is constantly changing as the work progresses.

4. MASTER AND SERVANT — Assumption of Risk — Plaintiff Engaged in Work upon a Bridge which Fell with Him — Injuries Occurring by Reason of Master's Negligence — Case at Bar. — Where a servant is engaged in repairing or renewing a highway bridge, circumspection should be used in applying the general doctrine that the servant assumes the risks incident to his employment. In undertaking employment of this character the servant may be held to a knowledge that there are perils incident to the work rendering its performance hazardous; still the master is liable for an injury to the servant occurring by reason of the master's negligence, and which would not have occurred in the usual execution of the work with a reasonable degree of care.

5. MASTER AND SERVANT — Assumption of Risk. — The employee assumes all the ordinary risks incident to the employment, he assumes such extraordinary risks as are plain and obvious, yet he does not assume any risks from the master's negligence unless they are plain and obvious or he knows of them and appreciates them and continues in the service.

6. MASTER AND SERVANT — Assumption of Risk — Safe Place to Work — Servant Injured when Bridge upon which He was Working Fell with Him — Case at Bar. — In the instant case plaintiff, a servant of defendant railroad, was injured when a bridge upon which he was working fell with him. Notwithstanding the fact that the ordinary principle requiring the master to provide for the servant a safe place does not apply to such a case, and although the servant assumes the risks incident to a hazardous employment, yet the servant can recover if he is injured by a hazard not usually incident to the work and brought about by the negligence of the master.

7. MASTER AND SERVANT — Assumption of Risk — Safe Place to Work — Servant Injured when Bridge upon which He was Working Fell with Him — Duty of Master — Case at Bar. — In the instant case plaintiff, a servant of defendant railroad, was injured when a bridge upon which he was working fell with him. The duty rested upon defendant railroad to exercise reasonable care to see that the bridge did not fall and so injure the plaintiff, and a failure to exercise such care constituted negligence.

8. MASTER AND SERVANT — Action by Servant for Injuries Sustained when Bridge upon which Servant was Working Fell with Him — Sufficiency of Declaration — Case at Bar. — The instant case was an action by a servant against his master for injuries sustained when a bridge upon which he was working fell with him. While the declaration might be subject to some criticism in its phrasing of the legal duty resting upon defendant, still it stated a case of negligence on the part of the master in failing to provide a safe place of work for the servant.

9. MASTER AND SERVANT — Assumption of Risk — Action by Servant for Injuries Sustained when Bridge upon which Servant was Working Fell with Him — Case at Bar. — The instant case was an action by a servant against his master. Plaintiff was injured when a bridge upon which he was working fell with him. From the evidence it could not be said that the plaintiff knew of any risks incident to the employment arising from the employer's negligence and nevertheless entered upon and continued in the service, nor that dangers attending the work, arising from the master's negligence, which were plain and obvious.

Held: That a verdict for plaintiff should not be disturbed.

10. MASTER AND SERVANT — Assumption of Risk — Injury to Servant when Bridge upon which Servant was Working Fell with Him — Plaintiff's Knowledge of His Danger Question for Jury — Case at Bar. — The instant case was an action by a servant against his master for injuries sustained when a bridge upon which he was working fell with him. Whether or not during the course of work the employer's foreman directed or allowed a negligent act causing the collapse of the bridge, and the plaintiff at the time became aware of the act and understood its import or the act and its danger was open and obvious, and so he either assumed the danger or contributed to the collapse and his consequent injury, were matters for the jury.

11. MASTER AND SERVANT — Servant Injured when Bridge upon which He was Working Fell with Him — Conflicts in the Evidence for the Jury. — In the instant case, an action by a servant for injuries sustained when a bridge upon which he was working fell with him, the evidence was conflicting. The defendant did not undertake to account for the collapse of the bridge. Plaintiff maintained and was supported by his evidence that while the bridge force was engaged in renewing a truss the bolts which fastened the inclined truss members or arms to the bottom chords or stringers were removed without connecting the truss otherwise or supporting the bridge, and this caused the collapse. This defendant denied and its denial was supported by its evidence.

Held: That the evidence was sufficiently in conflict to require a submission of the case to the jury, and to justify a verdict for plaintiff.

UPON A PETITION FOR REHEARING.

October 31, 1928.

12. MASTER AND SERVANT — Character of Machinery, Tools and Apparatus — Unbending Test of Negligence. — The unbending test of negligence in methods and in the character of the machinery and tools and apparatus used or furnished by the master is the general custom or ordinary usage in vogue among others engaged in the same business, so that the standard of due care is the conduct as to these methods of the average prudent man in the business.

13. MASTER AND SERVANT — Character of Machinery, Tools and Apparatus — Unbending Test of Negligence. — The application of the rule as to the unbending test of negligence to a given set of circumstances may be conclusive of the right of recovery, or it may not be.

14. MASTER AND SERVANT — Character of Machinery, Tools and Apparatus — Unbending Test of Negligence — Case at Bar. — The instant case was an action by a servant for injuries suffered when a bridge upon which he was working fell with him. There was uncontradicted evidence to the fact that the general plans and methods adopted for the repair of the bridge in question were those customary among bridge builders and bridge repairs. However, there was a definite act done in carrying out the plans for repair, which the plaintiff alleged to constitute negligence. If the customary plans had been attentively carried out without negligence the bridge would probably have not fallen.

Held: That the case was not one in which the application of the unbending test doctrine governed entirely.

15. MASTER AND SERVANT — Assumption of Risk. — A servant assumes all the ordinary, usual and normal risks of the business he is engaged in after the master has used reasonable care for his protection, and the risks which he knows of or which were so plain and clear that he must have known of their existence.

16. MASTER AND SERVANT — Assumption of Risk — Whether Bridge Worker Assumed Risk of Act Directed by His Foreman for Jury — Case at Bar. — The instant case was an action by a servant against his master for injuries incurred when a bridge upon which he was working fell with him. Plaintiff was an ordinary workman of some experience, but not of any skill in working upon bridges. Defendant contended that plaintiff assumed the risk of the falling of the bridge from the withdrawing of bolts from a truss arm ordered by its foreman.

Held: That the burden was upon the defendant to establish this...