Southern Ry. Co v. Jacobs

• Citation: 81 S.E. 99,116 Va. 189
• Parties: SOUTHERN RY. CO. v. JACOBS.
• Decision Date: 12 March 1914
• Court: Supreme Court of Virginia

(116 Va. 189)

81 S.E. 99

SOUTHERN RY. CO.

v.JACOBS.

Supreme Court of Appeals of Virginia.

March 12, 1914.

1. Commerce (§ 27*)—Railroad Employe-Interstate Commerce.

Where a railroad fireman was employed on a freight train containing cars engaged in interstate commerce, he was so engaged within the protection of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), though at the precise moment of his injury he was engaged in shifting cars solely engaged in intrastate commerce in a local freight yard.

[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]

2. Master and Servant (§ 286*)—Injuries to Servant—Railroads—Insufficiency of Tract—Negligence.

In an action under the federal Employers' Liability Act (Act April 22, 1908. c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]) for injuries to a railroad fireman engaged in interstate commerce, as the result of the presence of a cinder pile along the tracks, whether such pile constituted a defect due to the negligence of the railroad company was for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §S 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

3. Commerce (§ 8*)—Railroad Employes— Federal Employers' Liability Act—Ex-

clusiveness.

Congress having acted under the commerce clause of the Constitution with reference to injuries to railroad employes engaged in interstate commerce by the passage of the federal Employers' Liability Act (Act April 22, 1908, c. 140, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), such act supersedes all state laws in the field to which it applies.

[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.*]

4. Masteb and. Seevant (§ 203*)—Injuries to Servant—"Assumption of Risk."

The doctrine of assumed risk means that the employe assumes the ordinary risks incident to the business, but not those arising from the neglect of the employer to perform the positive duty owing to the employe with respect to appliances furnished, etc., except that where an employe receives for use a defective appliance, and with knowledge of the defect continues to use it without notice to the employer, he cannot recover for an injury resulting there-from (citing Words and Phrases, vol. 1, pp. 589, 591; vol. 8, pp. 7584, 7585.]

[Ed. Note.—For other cases, see Master and Servant, Cent Dig. §§ 538-543; Dec. Dig. §

203. *]

5. Master and Servant (§ 204*)—Injuries to Servant—Federal Employers' Liability Act—Defenses—Assumed Risk.

Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 66 [U. S. Comp. St. Supp. 1911, p. 1323]) § 4, declares that, in any action brought against a carrier under the act for injuries to any of its employes, he shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute for the safety of employes contributed to his injury. Held, that the act did not nullify the defense of assumed risk in actions thereunder, except where violation by the carrier of some statute enacted for the safety of employes contributed to his injury or death.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. §

204. *]

Error to Circuit Court, Brunswick County.

Action by R. B. Jacobs against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Williams, Tunstall & Thom, of Norfolk, for plaintiff in error.

Buford, Lewis & Peterson, of Lawrenceville, for defendant in error.

KEITH, P. This suit was brought under the act of Congress, approved April 22, 1908, known as the "Employers' Liability Act, " to recover of the Southern Railway Company damages for injuries sustained by the plaintiff while in the service of the company as fireman on a freight train running between Lawrenceville and Pinner's Point, Va. There was a verdict and judgment for the plaintiff, to which a writ of error was awarded.

The declaration shows that the defendant was, at the time of the injuries complained of, a common carrier engaged in interstate commerce; that the plaintiff was employed by the defendant in that commerce; and that the railway company permitted a pile of cinders to accumulate alongside its track and roadbed at Lawrenceville, which constituted a defect or insufficiency, due to its negligence, in its track or roadbed, which brings the case within the purview of the first section of the act of Congress above referred to.

Three questions of interest are presented for decision by the record. First. Was the plaintiff in error, at the time of the injury, engaged in commerce between the states, and was the defendant in error a person employed by the plaintiff in error in such commerce, within the purview of the act of Congress? Second. Did the cinder pile alongside the tracks of the company in its yard at Lawrenceville constitute a defect or insufficiency due to its negligence in its track or roadbed, from which the injury to the defendant in error resulted, in whole or in part? Third. Is the plaintiff in error entitled, under the act of Congress, to avail itself of the common law defense which defeated recovery if the defendant in error was chargeable with actual or constructive knowledge of the negligence of the plaintiff in error in creating the defect or insufficiency in its track or roadbed?

It is true that, at the precise moment of the injury, Jacobs, the man who was injured, was engaged with a crew in shifting cars in the yard at Lawrenceville, and the particular cars which were attached to the engine at the moment of the accident were engaged in intrastate, as contradistinguished from interstate, commerce, and did not come from any point beyond the limits of the state, and were destined to points within the state; but it is also true that the shifting and movement of the cars at the time had for its object the making up of a train to which cars were to be attached which came from points beyond the southern limits of the state and were destined to points beyond the northern limits of the state, by way of Norfolk, and were laden with interstate shipments; and these facts, we think, bring the case fairly with the influence of Pederson v. Delaware, Lackawanna & W. R. Co., 229 U. S. 146, 33 Sup. Ct 648, 57 L. Ed. 1125, and the circuit court committed no error in so deciding.

Nor have we any difficulty in holding that, under the circumstances, the cinder pile alongside the tracks of the company constituted a defect due to the negligence of the company, from which the injury to the appellee resulted, and was a question of fact for the jury upon proper instructions. And this brings us to the interesting and important question, upon the decision of which this controversy must turn.

So much of the act of Congress as is material to our present purpose is as follows:

Section 1 declares that: "Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states and territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe; and, if none, * * * then of the next of kin dependent upon such employe, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment."

Section 3: "That in all actions hereafterbrought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employ, or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe: Provided, that no such employe who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe."

Section 4: "That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employes, such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe."

It seems to be agreed, and we are of opinion rightly so, that this act was passed by Congress to constitute the law governing the liability of railway companies to their employes; that it was passed by Congress in pursuance of the commerce clause of the Constitution, which clothed it with authority and imposes upon it the duty to regulate commerce with foreign nations, among the several states, and with the Indian tribes. Until a recent period Congress had not carried this power into execution, but it had been left to the control of the several states through their Legislatures and courts. When Congress, however, did act upon the subject, its authority was complete and exclusive.

To the act, then, we must look for the law ' governing the liability of railroads and their employes inter sese, and in order to determine their relative privileges,...