Scott v. Virginian Ry. Co.
| Decision Date | 03 March 1936 |
| Docket Number | 8309. |
| Citation | 184 S.E. 559,117 W.Va. 180 |
| Parties | SCOTT v. VIRGINIAN RY. CO. |
| Court | West Virginia Supreme Court |
Submitted February 25, 1936.
Syllabus by the Court.
A workman who is injured while engaged in loading ties to be transported from one place to another upon the line of a railroad engaged in interstate transportation to be used at their destination upon the following morning by the same crew in which the workman was employed in repairing a "passing track," admittedly an instrumentality of interstate transportation, is engaged in int erstate transportation within the provisions of the Federal Employers' Liability Act, 45 U.S. C.A. §§ 51-59.
Error to Circuit Court, Wyoming County.
Action by C. M. Scott against the Virginian Railway Company. To review a judgment for plaintiff, defendant brings error.
Affirmed.
John R Pendleton, of Princeton, for plaintiff in error.
R. L Carney, of Roanoke, Va., and Bailey & Shannon, of Pineville for defendant in error.
C. M Scott brought this action in the circuit court of Wyoming county, and to a judgment based upon a verdict of a jury against it in the sum of $7,500, the defendant below prosecutes this writ of error. The action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, and the assignments of error turn upon the proof.
The plaintiff in error contends: (1) That the proof fails to show that it was guilty of actionable negligence; and (2) that in the event the evidence does show actionable negligence, it was the negligence of a fellow servant, and, inasmuch as the proof shows that the plaintiff was not, at the time of his injury, engaged in interstate transportation nor in work so closely related thereto as to be practically a part thereof, the Federal Employers' Liability Act does not apply and the defendant below has a complete defense under the common-law rule that the employer is not liable for an injury due to the negligence of a fellow servant. These defenses were presented by appropriate instructions on behalf of the defendant, offered and refused in the trial court.
The plaintiff was one of a section gang of five men, which, together with a section foreman, went to a point on the line of defendant's track at or near Iroquois in Wyoming county to load railroad ties from a pile of ties stored at that point, to be taken to a point at or near Amigo in the same county and there, on the following morning, to be placed in a passing track on defendant's line. It is admitted that this passing track was an instrumentality of interstate transportation. The crew went to the point where they were to load the ties on a railroad motortruck and stopped at a point on the track immediately opposite the tie pile. They were in a hurry to get this particular work done before quitting time. The distance from the nearest track to the pile of ties was 16 feet. The ties were of an average length of 8 1/2 feet, and the proof states their weight at from 125 to 225 pounds each. In placing the ties for use, the instructions were to "line them up" on the north side of the track, and each tie in the stack bore a marking at the end that was considered the better end of the tie to be "lined up." This was called the "line end" of the tie. The ties were not placed in the tie pile uniformly as to the location of these "line ends." However, in order to facilitate the handling of the ties and their placement under the track, it was customary to load them on the truck uniformly in this respect. In order to do this, one of the five men was placed upon the stack of ties. It was his duty to shove them off so that they could be placed on the truck in uniform position as to the "line ends" without turning them after they came off the stack. If the "line end" happened to be in the right direction, the tie was simply shoved off the stack. If it happened to be in the wrong direction, one end of the tie was shoved to the ground and the man on the stack upended the tie so that it would fall to the ground in the correct position to be placed on the truck. As the ties came off the stack, they were loaded onto the truck by the other four men; two men handling each end of the tie. The two men nearest the truck placed the end of the tie they were handling on the truck, and the two men at the far end then shoved the tie entirely onto the truck. The plaintiff was one of the two men working at the far end of the tie whose duty it was to shove it onto the truck after the end nearest the truck had been placed thereon. The tie stack was on a pile of "bone" that raised it slightly above the surrounding ground. The crew of five men and the foreman was a full-handed crew for the purpose. The plaintiff had, for some time, been a section hand on the railroad and was accustomed to loading ties in this manner.
The two first ties to be loaded on the occasion in question came off the stack with the "line ends" in correct position so that they did not have to be upended. They were safely placed on the truck. A third tie had to be upended before it could be placed on the truck. The man on the stack, before or at the time it was upended, shouted, "Watch your sore toes," as a warning and let the tie fall to the ground. This tie was loaded on the truck safely, but as the fourth tie, which also had to be upended to go on the truck properly, was taken off the stack, fell, it struck the plaintiff in the face, injuring him severely. A warning similar to the warning when the third tie fell was given by the man on the stack as the fourth tie was upended, and, as the fourth tie was falling, one or two of the other men in the gang shouted to Scott to look out. To this point, there is no conflict in the evidence.
The conflict in the proof concerns the position of Scott when the man on the stack started it on its over-end fall. The testimony for the defendant is to the effect that the man on the stack shouted his warning and then held the tie momentarily to give all of the men a chance to get "in the clear." Thinking that Scott had gotten "in the clear," he let loose of the tie, and Scott, on his way back from the truck, negligently stepped into it as it fell. On the other hand, the plaintiff's testimony is to the effect that Scott had barely had time, after assisting in the loading of the third tie, to turn from the truck before the fourth tie fell. Of course, if Scott had remained in a position on or near the track, approximately 16 feet from the stack of ties, the 8 1/2-foot tie would hardly have reached and struck him. The whole thing seems to have been very quickly done. As to exactly what the position of Scott was whether he was given reasonable opportunity to "get in the clear," whether his injury resulted from his own negligence or that of the man on the stack, we cannot say. The record is not convincingly clear either way. We therefore conclude that, under proper instructions, this was a jury question. It...
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