Robertson v. LeMaster

Decision Date24 March 1983
Docket NumberNo. 15543,15543
CourtWest Virginia Supreme Court
PartiesCurtis ROBERTSON, et al. v. Tony K. LeMASTER, et al., and N & W Railway Co.

Syllabus by the Court

1. "The liability to make reparation for an injury, by negligence, is founded

upon an original moral duty, enjoined upon every person, so to conduct himself, or exercise his own rights, as not to injur another." Syllabus Point 8, Blaine v. Chesapeake & O.R.R. Co., 9 W.Va. 252 (1876).

2. One who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm.

3. "Upon a motion for a directed verdict, all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed." Syllabus Point 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973).

4. "An intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and it only, the proximate cause of the injury." Syllabus Point 16, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963).

5. "The questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them." Syllabus Point 3, Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217 (1953).

Kenneth H. Fisher, Huntington, for appellants.

James D. McQueen, Jr., Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for appellees.

McGRAW, Chief Justice:

This is an appeal by Curtis and Karen Lee Robertson from an order entered by the Circuit Court of Wayne County granting the motion of Norfolk & Western Railway Company for a directed verdict, and dismissing the appellants' action on the merits. The appellants' civil action sought to hold liable Tony K. LeMaster, his mother, Arthonia, and the Norfolk & Western Railway Company for damages resulting from an automobile accident that occurred on October 12, 1978. The appellants' claim against Tony and Arthonia LeMaster was compromised and settled prior to trial. Consequently, the action proceeded solely against the appellee, Norfolk & Western Railway Company.

The evidence adduced by the appellants at trial showed that on October 11, 1978, Tony K. LeMaster, then nineteen years old, was employed by the appellee as a section laborer. LeMaster reported for work at 7:00 a.m. at the appellee's Nolan section office, approximately 50 miles from his home in Fort Gay. After working three hours in the Nolan area, LeMaster's section was called in to work at a derailment that had occurred near Kermit, approximately half-way between the appellee's section office in Nolan and LeMaster's home in Fort Gay. LeMaster and his fellow workers were transported to the derailment site in a truck owned by the appellee.

Upon arriving at the derailment site, the section foreman, Ruben VanHoose, instructed his men to eat lunch. When they finished eating, the section crew began the work of removing debris and repairing the track that was damaged by the derailment. The derailment had completely blocked the appellee's single railway track between Fort Gay and Nolan, and thus was deemed an emergency under the railroad's contract with its union employees. Much of the work of removing the derailed train and the damaged track was performed by heavy equipment furnished by the appellee. However, the work performed by LeMaster and his co-workers was heavy manual labor which included lifting railroad ties and shoveling coal. The work was continuous, except for intermittent periods when the workers were required to step back out of the way of the heavy equipment. The work continued long past LeMaster's normal 3:30 p.m. quitting time.

At approximately 10:00 p.m. that night, LeMaster told his foreman, VanHoose, that he was tired and wanted to go home. VanHoose told LeMaster that he could not go home, but told him to speak with Bill Rowe, the road master in charge. LeMaster did not speak with Rowe at this time, but continued working.

At approximately 1:00 a.m. on the morning of October 12, 1978, LeMaster was given his first chance to eat since lunch the previous day. LeMaster ate in a dining car provided by the appellee. When he was finished eating, LeMaster left the dining car and sat down outside to rest. LeMaster testified that this was his first opportunity to rest since beginning work on the derailment. After sitting down, LeMaster was approached by Rowe and told to return to work.

LeMaster resumed working. Several times during the night he told his foreman that he was tired and wanted to go home. Each time the foreman told LeMaster that he should ask Rowe. LeMaster testified that he did not speak with Rowe for fear of being fired. Apparently, LeMaster and Rowe were involved in a work related dispute several months before, which resulted in LeMaster being laid off for a week. At 5:00 a.m. LeMaster ate breakfast in the dining car. After breakfast he again resumed work.

At 9:00 a.m. or 9:30 a.m. LeMaster talked with Les Conn, the assistant foreman, about going home. Shortly thereafter, LeMaster told VanHoose that he was too tired to work, and VanHoose then told him to talk with Rowe. LeMaster finally spoke with Rowe, telling him that he was too tired to continue working. Rowe told LeMaster that if he wouldn't work, he should get his bucket and go home. LeMaster asked for a ride to his car in Nolan.

An employee of the appellee drove LeMaster to his car. During the drive from the derailment site to Nolan, LeMaster fell asleep with a lighted cigarette in his hand. Upon arriving at Nolan, LeMaster got into his car and began the 50 mile trip to his house in Fort Gay. He decided to stop en route at the derailment site at Kermit to speak with Rowe and determine if he had been fired. When he arrived at the derailment site, LeMaster threw his hard hat at Rowe, told him to find some other person to work, and then asked if he was fired. Rowe told LeMaster that he was not fired and to "just go on home." They then shook hands, and LeMaster left in his car.

On the way home LeMaster claims that he fell asleep at the wheel and the accident with the Robertsons resulted. LeMaster has no memory of the details of the accident. Benjamin Jude, a witness to the accident, testified that he was travelling from Kermit to Louisa at approximately 10:45 a.m. when LeMaster passed his car. Jude was travelling 65 to 70 miles per hour at the time. He estimated that LeMaster was travelling about 75 miles per hour. Jude testified that LeMaster turned his head and looked at him when he passed, and that LeMaster appeared normal and his eyes were open.

After passing Jude's vehicle, LeMaster came upon the appellants' vehicle travelling in the same direction as LeMaster, but at a much slower speed. Jude testified that it appeared that LeMaster was attempting to pass the appellants' vehicle when the right front end of LeMaster's car struck the left rear end of the appellants' car, causing the accident. After the accident, Jude approached LeMaster's car to see if he was injured. Jude testified that it took approximately a minute for LeMaster to regain consciousness. LeMaster told Jude that he was "all right except I must have fallen asleep."

The section crew of which LeMaster was a member had worked throughout the night without rest breaks. Some of the men did slip away and go to sleep. One member of the section crew blacked out, fell over an embankment and slept for approximately an hour. LeMaster worked approximately 27 hours before Rowe gave him permission to quit work. The section crew, other than LeMaster, worked for 37 hours on the derailment. The appellee railroad company offered to drive all members of the crew, other than LeMaster, to their homes, rather than taking them back to Nolan to their vehicles.

The appellants' cause of action sounds in tort. They allege in their complaint that the appellee, Norfolk & Western Railway Company, "illegally, willfully, wantonly, negligently, and with a conscious disregard for the rights and safety of others, ordered, forced and required ... LeMaster, its employee, to work for ... 32 hours straight without rest, and then to leave the ... place of employment without providing either rest or transportation home when it knew or should have known that its employee constituted a menace to the health and safety of the public." The appellants further allege that these acts of the appellee were the proximate cause of the automobile accident in which they were injured.

At the close of the plaintiff's case, the appellee moved for a directed verdict on the issue of liability. As grounds for the motion the appellee asserted that the appellants had made no factual showing to demonstrate that a duty of care existed on the part of the appellee towards the appellants, or to demonstrate that the conduct of the appellee was the proximate cause of the accident. The trial court agreed that the elements of duty and proximate cause had not been established, and granted the appellee's motion. We reverse.


"In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken." Syllabus Point 1, Parsley v. General Motors Acceptance Corporation, 167 W.Va. 866, 280 S.E.2d 703 (1981). See Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979); Morrison v. Roush, 110 W.Va. 398, 158 S.E. 514 (1931); Uthermohlen v. Bogg's Run Min. & Mfg. Co., 50 W.Va. 457, 40 S.E. 410 (1901). The appellee contends that it...

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