Sheeler's Adm'r v. Chesapeake & O. R. R. Co.

Decision Date03 December 1885
Citation81 Va. 188
CourtVirginia Supreme Court
PartiesSHEELER'S ADM'R v. C. & O. R. R. COMPANY.

Error to judgment of circuit court of Bath county, in an action of trespass on the case, wherein the administrator of Thomas A Sheeler, deceased, was plaintiff, and the Chesapeake and Ohio Railroad Company was defendant. Argued at Staunton, but decided at Richmond.

The object of the suit was to recover damages for the negligent killing of the plaintiff's intestate by the defendant. At the trial the defendant demurred to the plaintiff's evidence. The jury rendered a verdict that the plaintiff recover of the defendant the sum of $2,500 damages, subject to the opinion of the court on the demurrer. The court gave judgment thereon for the defendant, and the plaintiff obtained a writ of error.

Opinion states the case.

Tucker & Tucker, for the plaintiff in error.

Robertson, Parrish and Wickham, for the defendant in error.

OPINION

RICHARDSON J.

The declaration contains but one count, the gravamen of which is, that the deceased, a firemen in the employment of the defendant company, lost his life while in the discharge of his duty as such fireman, by reason of the defendant's negligent and careless construction, at a point in the line of its road, of a bridge, the upright sides of which were not sufficiently distant from the engines and cars when passing over same to allow and permit the plaintiff's intestate, as such fireman, to properly discharge his duties as firemen without incurring unreasonable risk and danger to his life and limbs.

After the general averment of defendant's failure and negligence in not erecting, as was its duty, safe structures and bridges in the respects above stated, the declaration proceeds: " And by reason of the carelessness and negligence of said defendant in not properly constructing said bridges and the upright sides thereto as aforesaid, the plaintiff avers that his intestate, while in the due and faithful discharge of his duty to said defendant as fireman, as aforesaid, upon one of the engines of said defendant, drawing a train of freight cars, and while exercising due care and caution, was violently hurled and thrown against a certain bridge, and the upright sides thereof, to-wit: on the 27th day of November, 1883, at the county of Bath aforesaid, at a point upon defendant's railway, between Copeland's and Crane's stations, on the line of said railway, and was knocked down and killed by means thereof. And the plaintiff avers that his intestate did not know, and had no means of knowing, while in the proper and faithful discharge of his said duties as fireman, as aforesaid, of the defects and dangers of the said bridge, and its upright sides thereto, and of the danger, the proximity, and closeness of said bridge, and upright sides thereto, to the said engines and cars of defendant while passing over and along the same, though the same was well known, and had been well known, to the said defendant for a long time," & c. And the declaration concludes with the averment that, but for the gross negligence of the defendant in the premises, and its failure to notify and warn the plaintiff's intestate of said dangers, the decedent would not have been injured, wounded and killed, whereby, & c. Such is the body and essence of the negligence charged against the defendant.

The defendant demurred to the plaintiff's declaration, and the court overruled the demurrer. Thereupon the defendant pleaded not guilty, upon which plea issue was joined.

At the trial in the court below, when all the evidence on both sides had been heard by the jury, the defendant demurred to the plaintiff's evidence, and the plaintiff joined therein. The jury found a verdict in favor of the plaintiff, and assessed the damages at $2,500, subject to the opinion and judgment of the court on the demurrer to evidence. On consideration, the court gave judgment for the defendant on the demurrer; and on the application of the plaintiff a writ of error to said judgment was awarded by one of the judges of this court.

The unfortunate occurrence, which resulted in the death of the defendant, Thomas A. Sheeler, happened on the night of the 27th day of November, 1883, at a point on the defendant's line of railway, between Copeland's and Crane's stations. The deceased (Sheeler) had been in the employment of the defendant for over three years--first as brakeman, and then, for the last eight months of that period, next preceding and at the time of his death, as fireman. Prior to the occurrence which resulted in his death, Sheeler had been regarded as a good and reliable railroad man, and had been recommended for, and been promised, promotion to the position of engineer.

It does not distinctly appear in evidence whether the train, on the engine of which Sheeler was fireman, was a passenger or a freight train; but, from what is disclosed, the fair, if not necessary, inference is that it was the latter. On that train R. J. Sweetwood was the engineer, having charge of the engine which drew the train, Sheeler, the fireman on said engine, and W. C. Miller, front brakeman; the latter being the only person who saw and knew exactly how Sheeler met his death, and the circumstances leading thereto. On the night in question this train left Clifton Forge--one witness says, about 12 o'clock, and another says about 11 o'clock and fifty minutes, under a special time order on No. 3 (the express train), and having until 12:40 to reach Mason's tunnel, some fifteen miles distant, where it was to stop for said express train to pass, going west--Miller, the front brakeman on the train, at or about Copeland, came forward and seated himself on the fireman's box in the cab, on the left side of the boiler near to and in full view of Sheeler, the fireman. Sweetwood, the engineer, was at his position, forward, on the right side of the boiler. The engine was what is known as a combination engine, with boiler five feet in diameter, extending back through the cab, so that Sweetwood, from his position, could not see Sheeler in the position in which the latter was at the time of the accident, he being on the steps of the engine and tender on the left side thereof. From Miller's testimony it appears that, as the train was passing, or as it left Copeland's, Sheeler shook his grate vigorously for two or three minutes, and soon thereafter discovered that some waste woolen ravellings, saturated with grease, on top of the box of the rear driving wheel of the engine, was on fire and blazing; seeing the fire, Sheeler took a small hose attached to spigot on tender, got down on outside of engine and tender, with his right foot on the step of the engine and his left on step of tender; and, clasping with his right hand the hand-holder on engine, and holding in his left hand the hose, swung his body out and forward in a stooping posture, and, with his left arm reaching round under the side of the engine, was attempting to extinguish the fire, when he struck against the upright side of the bridge, was knocked down and killed; the train at the time running at the rate of eighteen or twenty miles an hour.

Sheeler got in the position in which he was killed in about three hundred yards of the bridge. Miller, who was looking at him, and not thinking they were so near the bridge, happened to look forward, and, by the aid of the head-light, saw the bridge, but just had time to turn when he saw Sheeler fall, struck by the bridge. Miller called to Sweetwood across the boiler; the train was stopped as quick as possible, and the two went back, assisted in taking up Sheeler and putting him in the caboose of the train, and, by reason of the time thus lost and the danger of a collision with the coming express train, had to hurry away so as to get on the siding at Crane's, for the express to pass. Crane's is three or four miles west of Mason's tunnel, and by that distance short of the point to which the train had been ordered to go by the time order. From the bridge to Crane's, where the train stopped for the express to pass, there seems to have been no fireman. On arriving at the latter place it was discovered that the ash-pan of the engine was open. To open the ash-pan when a train is in motion, was in violation of the company's orders. Miller says: " The accident happened from Sheeler getting down on the steps to put the fire out. A fireman could not run by there four or five months without knowing about the bridge." The same witness says: " When Sheeler shook the grate bars as the engine was running along, the live coals fell out and bounded against the ties up to the driving-wheel spokes, and they threw them up against the waste on the driving box. That's how it was set on fire."

From the statement of Sweetwood, the engineer, under whom Sheeler was fireman, it appears that he knew nothing of how the accident occurred, as, from his position as engineer, he could not see Sheeler in the position in which he was when struck; that a man standing on the engine steps could not, in his opinion, safely pass the bridge, though he never saw a man try it, and would not try it himself; that the top of the bridge side is about eighteen inches higher than the floor of the cab, and that he supposed the distance or space between side of passing engine and side of bridge to be about nine or ten inches, but that he never examined the bridge; that he did not, and would not, have ordered Sheeler into the position in which he was, and that his duty as fireman never required him to get on outside of engine or tender when in motion, and that Sheeler took the position in which he was killed voluntarily and at his own risk, and that Sheeler could not have put out the fire in the way he was trying, as the rapidly...

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