Southern Ry. Co v. Newton's Adm'r

• Decision Date: 12 March 1908
• Citation: 108 Va. 114,60 S.E. 625
• Parties: SOUTHERN RY. CO. v. NEWTON'S ADM'R.
• Court: Virginia Supreme Court

60 S.E. 625

108 Va. 114

SOUTHERN RY. CO.

v.NEWTON'S ADM'R.

Supreme Court of Appeals of Virginia.

March 12, 1908.

1. Master and Servant—Injuries to Servant—Condition of Railroad Tracks. Where a brakeman was killed while in the performance of his duties in endeavoring to

uncouple a car from a freight train, and the accident resulted from his stepping into a trench or excavation which had been dug along the track for the purpose of putting in target signals, the railway company was negligent, although it may have been dealing with an independent contractor for putting in such signals.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 218-221.]

2. Same—Care Required. A railway company owes its servants the duty of ordinary care to protect them against danger from defective tracks.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 218-221.]

3. Same — Evidence — Contributory Negligence.

In an action for the death of a brakeman while in defendant's employ, held, that the evidence justified the finding that deceased was not guilty of contributory negligence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 987-996.]

Error from Circuit Court, Norfolk County.

Action by J. R. Newton, as administrator of R. H. Newton, deceased, against the Southern Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.

W. L. Williams and Robert B. Tunstall, for plaintiff in error.

Jeffries & Lawless and E. P. Buford, for defendant in error.

HARRISON, J. This writ of error is to a judgment in favor of the defendant in error in an action brought by him to recover of the plaintiff in error damages for having negligently caused the death of bis intestate.

The record shows that the deceased, R. H. Newton, a young man 21 years of age, employed by the Southern Railway Company as brakeman, met his death on the 17th day of January, 1905, while endeavoring to uncouple a car from a freight train owned and operated by the defendant company. The time of the accident was early in the morning, and the weather was "hazy, cloudy like, and foggy." The place of the accident was near Boone, a switching station in the county of Norfolk. While engaged in an attempt to work the handle bar of the brake rod for the purpose of detaching a car, the train was backing, and he running to keep up with it. Before he succeeded in uncoupling the car, he stepped into a trench or excavation, technically called a "lead out, " which had been made a few days before, without his knowledge, immediately contiguous to the rails and cross-ties, and in the path he w-as required to traverse while performing his duty. The unexpected plunge into this excavation caused him to fall under the wheels of the moving train, where he was immediately crushed to death.

This excavation was 6 feet in length, running parallel with the rails. It was 4 1/2 feet wide, and 9 1/2 inches deep, and had piled around it the excavated dirt to the height of 12 inches above the surface level. It had been dug for the purpose of putting therein a dwarf, or target, signal as a part of an interlocking switch system, which was being installed by the Union Switch & Signal Company under a contract between it and the defendant railway company.

The chief contention of the plaintiff in error is that under the terms of this contract the Union Switch & Signal Company was an independent contractor, and that the railway company was, therefore, not responsible in this action.

The contract mentioned is in writing and filed with the record. It is plainly a joint contract, under which both parties agreed to perform certain parts of the work necessary to the installation of the contemplated "interlocking switch system." The railroad company assumed to do all track work, have all switches, derails, etc., ready to be connected, do all preliminary grading, and prepare the surface of the ground where the connections were to be run. Before the Union Switch Company began its work, the defendant was to do all blasting, to provide proper drainage, to provide space under the tracks for the "lead out" to cross, etc. The testimony of the foreman of the switch company, who was introduced by the plaintiff in error, shows that it was the duty of the railway company to dig the "lead out" or excavation complained of in this case, and to box it with lumber when completed. It is further shown by this witness that it was the custom to cover the "lead outs, " or trenches, with boards when they are not filled up. This was not done in the case at bar.

The railway company certainly retained control of a large part of the work to be done under this contract, and whether under such circumstances the Union Switch Company can be said to be an independent contractor, in the legal sense of that term, may well be doubted. If, however, it be assumed that the Union Switch Company was an independent contractor, it would not, under the circumstances of this ease, relieve the defendant from...