Shenandoah Val. R. Co v. Lucado's Adm'r

• Decision Date: 05 December 1889
• Citation: 10 S.E. 422,86 Va. 390
• Parties: Shenandoah Val. R. Co. v. Lucado's Adm'r.
• Court: Virginia Supreme Court

10 S.E. 422

(86 Va. 390)

Shenandoah Val. R. Co.

v.Lucado's Adm'r.

Supreme Court of Appeals of Virginia.

Dec. 5, 1889.

Master and Servant—Injury to Servant.

Plaintiff's intestate had been employed by defendant for many months as a section hand, and on the night of the accident had been detailed as a watchman, and instructed to walk back and forth between two points on defendant's tracks. While doing so, he mounted a passing engine, which defendant's rules forbade. Copies of these rules were distributed among the section foremen. Held, that intestate was charged with notice of the rules, and, being on the engine contrary to these rules and to his instructions, his representative could not recover for injuries caused by an accident to the engine, and it was immaterial whether or not his getting on the engine was objected to by those in charge.

E. Pendleton and W. H. Travers, for plaintiff in error. W. A. Anderson, for defendant in error.

Lewis, P. This is a writ of error to a judgment of the circuit court of Botetourt county, in an action of trespass on the case, wherein the administrator of Robert Luca-do, deceased, was plaintiff, and Sidney F. Tyler, receiver of the Shenandoah Valley Railroad Company, was defendant. The action was brought to recover damages for the alleged negligent killing of the plaintiff's intestate on the night of the 29th of October, 1885, while in the employ of the defendant as a brake hand, temporarily detailed as an extra watchman. His death was caused by the derailment of a locomotive on which he was riding, and that was occasioned by a washout in the road-bed which caused the engine to roll down into the edge of the river, near the track, when the deceased, unfortunately, was drowned. At the trial there was a verdict for the plaintiff for $8,000 damages, which the defendant moved the court to set aside; but the motion was overruled and judgment entered on the verdict, whereupon the case, on a writ of error, was brought to this court. The record is voluminous, but the case itself lies within a narrow compass, and may be briefly disposed of.

The contention of the defendant in error, the plaintiff below, is that the deceased was rightfully on the engine, and that his death was caused by the defective construction of the road-bed and track, and without fault on his part. But this position is untenable. The facts disclosed by the roc-ord, so far as It is necessary to state them, are substantially these: The deceased, on the night of the accident, was detailed to watch the track for a certain distance, and to give warning of any signs of danger that he might discover. There had been a severe, in fact, an almost unprecedented, rain just before, from which danger to the track was apprehended, and in consequence of which extra ordinary precautions seem to have been taken by the officials of the company to prevent accidents. At a point a short distance below or north of the place where the accident occurred, there was a crook in the railroad embankment, which another employe was ordered to watch, with a red light. A red light is a well-understood signal of danger, and to engineers it means to stop." From this point, about 7 o'clock in the evening, the deceased, with a lantern in his hand, started up the track, to go over his beat, which extended up the track, about three-quarters of a mile from that point. The night was very dark.

How often the deceased passed over his beat, if more than once, does not appear. His orders, however, were peremptory to be vigilant, and to " walk backwards and forwards over t, he ...