Southern Ry. Co v. Wilmouth

• Decision Date: 12 June 1930
• Citation: 153 S.E. 874
• Parties: SOUTHERN RY. CO. v. WILMOUTH.
• Court: Virginia Supreme Court

153 S.E. 874

SOUTHERN RY. CO.

v.WILMOUTH.

Supreme Court of Appeals of Virginia.

June 12, 1930.

Train was standing partly on bridge over river. Deceased carrying a lantern was follpwing yard brakeman, who was coupling air hose and who, on reaching unprotected end of walkway along bridge, climbed along end of ties. Deceased was then almost at edge of opening, and yard brakeman heard splash in water and sound like breaking glass.

The walkway extended for part of the length of the bridge and ended in unprotected opening. There was a walkway for entire length of bridge on the other side of the bridge.

45 USCA § 51, makes interstate common carriers by railroad liable for injury to or death of employee resulting from negligence of officers, agents, or employees of carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, etc. Section 54 provides that employee shall not be held to have assumed risk where violation by carrier of statute enacted for safety of employees contributed to injury or death.

Deceased was checking cars on train standing partly on bridge over river adjoining yard. There was a walkway part of the length of the bridge, which ended in unprotected opening in the bridge. Deceased had a lantern and had long been familiar with yard conditions. He was preceded by yard brakeman, who was coupling air hose, and who on reaching end of walkway climbed along end of ties.

Error to Hustings Court, Part 2, of Richmond.

Action by Mattie Wilmouth, administratrix of John Y. Wilmouth, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Wirt P. Marks, Jr., of Richmond, for plaintiff in error.

Fulton & Hall, of Richmond, for defendant in error.

HOLT, J.

Plaintiff's decedent on January 17, 1925, fell from defendant's bridge and was drowned. His administratrix, under notice of motion, has recovered on account thereof a $10,000 judgment, and that judgment is now before us on a writ of error.

The defendant owned and operated a railroad running from Richmond to Danville and thence south into North Carolina and other states. Among its facilities in Richmond is a yard on the south side of the James river and a yard on its north side near the foot of Fourteenth street. These are connected by a single-track bridge across that stream, whose general direction is north and south. In the Fourteenth street yard are several switch tracks which converge near its north end into a main single bridge track. In making up freight trains, cars are brought from South Richmond to this Fourteenth street yard that they may be classified and placedin proper order. The tracks on the Fourteenth street yard were not long enough always to hold a completed train, and hence they were arranged on these short switch tracks into cuts or blocks which were afterwards attached to the engine in their proper order, and in the process of this make-up it is at times necessary that the engine move out on the bridge and over the river. This was the situation at the time of the accident. The engine, with certain cars attached, was out on the bridge, while a part of the train extended back into the yard. Along the east side of this bridge is a protected plank walkway. This walkway is for the convenience of employees and runs entirely across the river. Along the west side is a similar walkway, which does not, however, cross the river but ends at a point 49 feet south of a switch which is the last switch there and controls one of the converging tracks. This last switch is over the river as is the end of this plank walkway, 49 feet beyond it. Its end is unprotected and unlighted. From there on between the framework of the bridge at regular intervals are openings 12 feet 2 inches long and 3 feet 2 inches wide. It was at one of these openings that the west side walkway ended.

Wilmouth had been employed about this yard since 1913, and had been a member of the train crew which operated this particular train for about six months preceding his death. He came on duty around 6:40 p. m., took up his train book and lantern and proceeded, as was his duty, to get from the cars their initials and numbers. This was a part of his regular duty in preparing for departure this regular scheduled train which was to leave at 7 o'clock.

The night was dark and cloudy. These numbers and initials appear on both sides of the cars, and so it was not necessary that one doing this work be on any particular side of the train. It could have been done from the east side with safety even though the train had extended across the river, and it could have been done with safety from the west side up to the point where the plank walk ended.

A yard brakeman named Johnson went in front of Wilmouth to couple up the air hose between cars. When he reached the end of the plank flooring on the west side of the bridge, he climbed along the end of the ties until he got between the ends of the first and second cars from the engine and about 10 or 12 feet beyond the end of the plank flooring. When Johnson had gotten between these two cars, Wilmouth called to him and asked him if that was the last car. Johnson said that it was, raised his lantern, read the number and initials, and gave them to Wilmouth. He then leaned down to couple up the hose and about that time heard a splash in the water, and a sound like the tinkling of breaking glass. When he last saw Wilmouth, Wilmouth was two or three cars lengths from the end of the plank flooring, but be seemed to be only 10 or 12 feet away when he asked Johnson for the car number. Wilmouth fell through this opening and was drowned. At the time of his death he was engaged in taking the record of cars in that cut next to the engine, three of which were directly engaged in interstate commerce and billed for North Carolina.

The defendant demurred to the evidence. A verdict was returned for the plaintiff subject to this demurrer. It was overruled and judgment followed. Petitioner here charges that the trial court erred in:

1. Not holding that the manner in which the decedent met his death was purely speculative;

2. Not holding that the defendant was not guilty of negligence;

3. Not holding that the decedent assumed the risk; and

4. In the admission of certain testimony. Under well-established rules, it is our duty to affirm the judgment if there is evidence to sustain it.

The defendant was an interstate carrier, and the decedent at the time of his death was engaged in checking up cars that they might be moved to points without the state. He, therefore, was engaged in interstate commerce, and so we are controlled by those federal statutes which are applicable to this situation and by the decisions of federal courts so far as they have spoken. St. Louis, etc., Rwy. v. Seale, 229 U. S. 156, 33 S. Ct. 651, 57 L. Ed. 1129; Pecos & Northern Rwy. v. Rosenbloom, 240 U. S. 439, 36 S. Ct. 390, 60 L. Ed. 730; C, M. & St. Paul Rwy. Co. v. Coogan, Spec. Adm'x, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041; Philadelphia & Reading Ry. Co. v. Hancock, 253 U. S. 284, 40 S. Ct. 512, 64 L. Ed. 907. Williamson v. S. A. L Rwy., 136 Va. 626, 118 S. E. 255; N. & W. Ry. Co. v. Lumpkins' Adm'r, 151 Va. 173, 144 S. E. 485.

Since Congress has spoken, we can look neither to section 162 of the Constitution of Virginia nor to Code, § 5793, for guidance.

There is nothing speculative about the manner in which decedent came to his death. He was following Johnson, the air coupler, southward across the bridge. On his left was the train and on his right was a protecting wall which ran along the extreme western edge of the bridge. Johnson had passed the north end of this 12-foot opening and in doing so had to climb along the ends of the ties. Wilmouth was following him and appeared to be only 10 or 12 feet behind when he asked Johnson about the car number. In other words, he was then almost atthe edge of this opening. He apparently fell into the river through the opening, or over the west protecting bridge wall. Fresh, identified tracks on both banks of a ford give ample evidence of crossing.

Was the railway negligent? Unless there was negligence there can be no liability.

"The Federal Employers' Liability Act [45 USCA §§ 51-59] permits recovery upon the basis of negligence only. The carrier is not liable to its employees because of any defect or insufficiency in plant or equipment that is not attributable to negligence." Delaware, L. & W. R. Co. v. Koske, 279 U. S. 7, 49 S. Ct. 202, 203, 73 L. Ed. 578; Missouri Pac. R. Co. v. Aeby, 275 U. S. 426, 48 S. Ct. 177, 72 L. Ed. 351.

This west-side walkway extended, as we have seen, 49 feet beyond the last switch and ended at an unprotected opening in the bridge. There are no structural reasons which prevented its continuance. There is a walkway on the east side the entire length of the bridge and it could have been extended in like manner on the western side. Similar conditions obtained in each instance. It is true, however, that there was no obligation on the part of the defendant to build a second walkway across the river. The wisdom of its construction rested in the road and courts will not undertake to control it. Delaware, L. & W. R. Co. v. Koske, supra. But when built, reasonable protection for those who might be expected to use it was necessary, and a failure to provide such reasonable protection would be actionable negligence. Black v. Portland Cement Co., 104 Va. 450, 51 S. E. 831; Froman v. C. & O. Ry. Co., 148 Va. 148, 138 S. E. 658.

Did Wilmouth assume those risks incident to this opening in the footbridge?

The common-law rule governing the assumption of risks is satisfactorily stated in C. & O. Ry. Co. v. Meadows, 119 Va. 33, 89 S. E. 244, 251, where many cases are cited, both state and federal: "The true rule of law deducible from the authorities is that the servant assumes all the ordinary, usual, and normal risks of the business after the master has used...