Shiflett v. Western Maryland Ry. Co.
| Decision Date | 08 March 1938 |
| Docket Number | 8675. |
| Citation | 195 S.E. 849,119 W.Va. 676 |
| Parties | SHIFLETT v. WESTERN MARYLAND RY. CO. |
| Court | West Virginia Supreme Court |
Submitted January 19, 1938.
Syllabus by the Court.
1. Under the Federal Employers' Liability Act, 45 U.S.C.A §§ 51-59, an employee assumes the ordinary risks of his employment, but does not assume extraordinary risks, or those resulting from the negligence of fellow servants, until he has had opportunity to observe the same.
2. "In an action under the Federal Employers' Liability Act the defense of assumed risk is inapplicable when the injury arises from a single act of negligence of a fellow employee creating a sudden emergency without warning to the plaintiff or opportunity to judge of the resulting danger." Webb v. Chesapeake & Ohio Railway Company, 105 W.Va. 555, 144 S.E. 100.
Error to Circuit Court, Pocahontas County.
Action under the Federal Employers' Liability Act, 45 U.S.C.A §§ 51-59, by Clorus L. Shiflett against the Western Maryland Railway Company to recover damages for injuries sustained by the plaintiff while in the defendant's employ. To review a judgment in favor of the plaintiff, the defendant brings error.
Judgment affirmed.
E. A Bowers, of Elkins, P. T. Ward, of Marlinton, and Paul S. Parsons, of Baltimore, Md., for plaintiff in error.
S. H. Sharp and A. E. Cooper, both of Marlinton, for defendant in error.
This is an action under the Federal Employers' Liability Act, 45 U.S.C.A.§§ 51-59, instituted by Clorus L. Shiflett against the Western Maryland Railway Company, in the circuit court of Pocahontas county, to recover of the defendant damages for injuries sustained by the plaintiff while in the defendant's employ. A trial of the case before a jury resulted in a verdict for the plaintiff, on which judgment was entered by the court. To said judgment the defendant prosecutes this writ of error.
At the date of the injury out of which this action arises, the plaintiff was employed by the defendant as a section hand. Such employment had extended over a period of more than twenty years, a part of which time he acted as section foreman. At the time of the injury, the defendant was engaged in relaying its track, and preparatory thereto, was unloading steel rails from a gondola car. This unloading of rails was effected by the use of a steamoperated crane or hoisting machine which was placed on a car attached to the gondola in which the rails were loaded, and this crane was run by two men, one a fireman and the other the operator of the crane. The rails, each of which weighed 990 pounds, were lifted from the gondola car by the crane by means of a cable and tongs. The operation inside the gondola car was handled by three men, one located at the center of the car, whose duty it was to attach the tongs to the rail; another at the end of the car who guided the rails after they had been lifted so that they could be lowered to the ground at the proper place; and an employee, in this case the plaintiff, Shiflett, whose duty it was to turn or otherwise handle the rails so that the tongs could be applied thereto by the tong man in the center of the car. In turning the rails, Shiflett used what is called in the record a "safety fork," which could be adjusted to the rails through pressure of the hand to the handle of the appliance. He was supposed to apply this fork, turn the rail in position so that the tongs could be applied, and then release the fork. The operator of the crane and the three men who were working in the car were all in plain view of each other. On the morning of the accident, the crew engaged in unloading rails was short one man, and Shiflett was directed by his section foreman to assist the crew, which is denominated in the record a "ditcher crew." Following this direction, he entered upon his work. He states he was not given special instructions as to the use of the safety fork, but that when he went into the gondola car, he found his fellow worker, Taylor, at the end of the car in a space large enough so that they could operate with safety, and being given his choice of the work he should perform, although he had never used a tool of this type, took up the safety fork and began turning rails, Taylor guiding them over the side of the gondola. Taylor says he instructed Shiflett as to the use of the safety fork. They began work about eight o'clock in the morning and continued for some two hours, during which time quite a number of rails were unloaded. Shiflett practically admits that he knew how to use the safety fork, and says that they probably unloaded as many as 150 or 200 rails, while the estimates of other witnesses are much lower, some being as low as 50 rails. Apparently, from the statement of witness Emmett Cross, all of the rails were unloaded from one car, and this may bear somewhat on the number of rails unloaded prior to the accident. About ten o'clock Shiflett placed the safety fork on a rail, turned the same in position where the tongs could be applied, and they were applied. The testimony of the plaintiff is that the rail was given a quick jerk by the operator of the crane, and the safety fork not being released from the rail, was thereby caused to strike the plaintiff in the right temple, inflicting the injury of which he complains. The crane operator denies this statement; Taylor was looking in another direction and did not see the accident; and the tong man in the middle of the car died before the trial. No signals were given at any time while the work progressed as to when the tongs had been applied, or when a rail was to be lifted, or the safety fork should be released. Apparently, the parties, being in plain view of each other, depended upon sight. No warning was given at the time this particular rail was moved, and it appears from the testimony that this was the first time the movement of any rail had caused a happening of this nature.
The defendant contends: (1) That the risk of the accident from the employment in which the plaintiff was engaged, being plain and obvious, was assumed by him; and (2) that he was guilty of negligence, which was the proximate cause of the injury sustained by him.
Under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, a plea of assumption of risk is not precluded as a defense, except in cases where there is a violation of some statute enacted for the safety of employees. Seaboard Air Line Railway v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann. Cas.1915B, 475; Chicago R.I. & P. Railroad Company v. Ward, 252 U.S. 18, 40 S.Ct. 275, 64 L.Ed. 430; Campbell v. Chicago, R.I. & P. Railroad Company, 120 Neb. 499, 234 N.W. 395; Looney, Adm'x, v. Norfolk & Western Railway Company, 102 W.Va. 40, 135 S.E. 262, 137 S.E. 756, 48 A.L.R. 806; Thornton's Federal Employers' Liability Act, §§ 122-126; Richey, Federal Employers' Liability Act, § 69. The rule as to risk assumed under that act is clearly defined by our decisions. In Harness, Adm'x, v. Baltimore & Ohio Railroad Co., 86 W.Va. 284, 103 S.E. 866, 867, this court held: "An employé assumes those risks and...
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