Southern Ry. Co v. Johnson's Adm'x

• Decision Date: 17 November 1910
• Citation: 69 S.E. 323,111 Va. 499
• Parties: SOUTHERN RY. CO. v. JOHNSON'S ADM'X.
• Court: Virginia Supreme Court

69 S.E. 323

(111 Va. 499)

SOUTHERN RY. CO.

v.JOHNSON'S ADM'X.

Supreme Court of Appeals of Virginia.

Nov. 17, 1910.

1. Master and Servant (§ 243^*)—Death of Servant — Railroads — Operation — Violation of Rules.

No recovery can be had for the death of a railroad engineer, resulting from a collision caused by his willful violation of a rule regulating the operation of trains, of which he had knowledge and which remained unrepealed.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 682, 759, 775; Dec. Dig. § 243.*]

2. Master and Servant (§ 265*)—Death of Servant —Railroads —Rules — Suspension—Waiver—Proof.

Where plaintiff sued for death of a railroad engineer in a collision, due to his violation of a rule, and claimed that the rule had been waived or suspended, the burden was on plaintiff to show that violations of the rule had been so frequent as to become habitual, that they were known or by ordinary care should have been known by those charged with the duty of enforcing the rules, and that such persons with such knowledge took no steps to compel their observance.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 894-908; Dec. Dig. § 265.*]

3. Trial (§ 252*)—Instructions.

"Where a railroad engineer was killed in a collision due to his violation of signal rules, and the evidence showed neither knowledge of infractions of the rule by the superintendent or his assistants, nor a fixed habit of disregarding the rule, the court erred in submitting to the jury whether compliance with the rule had been suspended or waived.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]

Error to Circuit Court, Shenandoah County. Action by Amos C. Johnson's administratrix against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and remanded for new trial.

Downing & Weaver and Robert B. Tunstall, for plaintiff in error.

Walton & Walton and John M. Johnson, for defendant in error.

WHITTLE, J. The judgment under review was recovered by the defendant in error (plaintiff below) for the alleged negligent killing of her intestate, Amos D. Johnson, in the following circumstances: Johnson was engineman on train 177, a through freight running from Harrisonburg to the Potomao yards, near Alexandria, Va. At 12:35 o'clock in the afternoon of November 9, 1908, he was killed at Pugh's Run, a point 1 1/2miles east of Woodstock, in a head-on collision with No. 263, a local freight train. The situation will be made plain by the following extract from the petition for a writ of error:

"In the operation of trains on the Harrisonburg or Manassas branch, the defendant installed at all telegraph stations what is known as the 'semaphore.' This semaphore consists of two paddles, one being used for east-bound trains and the other for westbound trains. These paddles are connected with and operated by the agent or operator at the various stations by means of levers, which are located in the latter's office. The normal position of these paddles is horizontal, and when in this position the signal shows red, indicating danger. Whenever a train approaches a telegraphic station, the rules require the engineman to sound four short blasts of the whistle, which is a signal to the operator to lower the paddle from danger to proceed, in the event there are no orders held by him for that train. If, however, the operator has orders, the paddle remains at danger. As a station is approached, if the engineman fails to see the paddle fall or changed to proceed before coming to a stop, he is then positively forbidden to pro-ceed or leave that station until he receives either a train order or a clearance card. This clearance card is a written form, signed by the operator, addressed to the particular train, stating that he holds no orders for that train. This card is delivered in duplicate, one of which the conductor hands to the engineman, the other being held by him; the card stating in large letters: 'Conductor and engineman must each have a copy, and see that their train is correctly designated in the above form.' Train orders are delivered by the operator to the conductor. He receives two copies, one for himself and the other for the engineman; it being made the duty of the engineman to demand his copy from the conductor, since, in the movement of trains by orders and observance signals, the responsibility of the engineman, under the rules, is equal with that of the conductor."

At 11:40 a. m. an order was sent to the operator at Edinburg, a station 6 miles west of Woodstock, directing 174 to meet 263 at Woodstock. The same order was delivered to train 263 at Strasburg Junction, a station 12 miles east of Woodstock. Johnson's train arrived at Edinburg at 12:01, and the semaphore being set for danger he gave the required signal, but the paddle remained at danger, which notified him that orders were held for the train, or that he should not proceed until he received an order or a clearance card. There was conflict in the testimony touching the delivery of the order to the conductor at Edinburg informing him that 174 was to meet 263 at Woodstock; but, however that may have been, it is undisputed that Johnson, in flagrant violation of rule 4, departed from Edinburg and proceeded on his journey without having received either an order or a clearance card. The evidence also tends to show that when 174 approached Woodstock, both paddles of the semaphore were down, which under rule 4 was an imperfect signal; and rule 27 declares that "a signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a stop, and the fact reported to the superintendent." The evidence tends further to show that, after remaining at Woodstock about two minutes, Johnson, in violation of the last-mentioned rule, left that station at 12:29, and the collision occurred at 12:35.

To break the force of Johnson's disregard of these vital regulations, the plaintiff undertook to show that they had been so frequently violated by the employes of the defendant as to warrant the jury in believing that the superintendent and his assistants were advised of that condition and acquiesced in the non-observance of the rules. Accordingly the trial court, upon that theory and over the objection of the defendant, instructed the jury "that it is the duty of a railroad company to adopt, promulgate, and enforce proper rules for the guidance and control of its employes engaged in the hazardous duty incident to

the moving and running of trains, and particularly to avoid collision between trains moving towards each other on the same track from opposite directions, and that on the failure of said company in either one of the above particulars—that is to say, the adoption, promulgation, and enforcement of said rules—they may find the company negligent. And if they believe from the evidence that the said rules were frequently disregarded by the employes on defendant's trains, with the knowledge or acquiescence on the part of those persons whose duty it was, under other rules of the company, to report the same to the superintendent's office, the jury may be warranted from such circumstances in imputing knowledge of the condition of affairs in this respect to the railroad company, or the want of ordinary care on its part in the performance of its duty if it remained in ignorance of a...