Southern Ry. Co v. Childrey

• Decision Date: 14 March 1912
• Citation: 74 S.E. 221,113 Va. 376
• Court: Virginia Supreme Court
• Parties: SOUTHERN RY. CO. v. CHILDREY.

74 S.E. 221

(113 Va. 376)

SOUTHERN RY. CO.

v.CHILDREY.

Supreme Court of Appeals of Virginia.

March 14, 1912.

1. Master and Servant (§ 293*)—Railroads —Safe Appliance—Duty to Provide.

In an action against a railway company for injury to a brakeman, it was error to instruct that the company was bound to use ordinary care to furnish sound and safe brakes and appliances, since it was the company's duty merely to use ordinary care to provide reasonably sound and safe brakes and appliances.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1148-1161; Dec. Dig. § 293.*]

2. Master and Servant (§ 296*)—Railroads —Injury to Brakeman—Defective Appliances—Instructions—Inspection.

Iu an action for injury to a railway brake-man caused by a defective appliance, an instruction that if defendant company maintained inspectors of appliances plaintiff could assume that the duty had been properly performed, etc., was erroneous as ignoring his duty to make an inspection under a rule of the company.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]

3. Master and Servant (§ 235*)—Railroads —Defective Appliances—Inspection—Duty of Employe.

Maintenance by a railroad company of special inspectors of appliances does not relieve a brakeman of his duty, under a rule of the company, to make a reasonable inspection for open and obvious defects in brakes used by him.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §$ 710-722; Dec. Dig. § 235.*]

4. Master and Servant (jj 296*)—Railroads —Injury to Brakeman—Instructions.

In an action for injury to a railway brake-man caused by a defective brake, it was proper to refuse to instruct that he was bound to acquaint himself with the dangers incident to his work, that the law presumes he knew such dangers as were open, obvious, and usually attendant upon his employment, and that if he knew or might have known of the dangers and avoided the injury to himself by using ordinary care he could not recover.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]

5. Master and Servant (§ 125*)—Knowledge of Dangers — Imputation to Employer.

Previous knowledge of a coemploye' of an injured person of a defective condition is not imputable to the employer, the employer being negligent only in not knowing of a defect not known to an officer or agent for whose negligence the employer would be responsible.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*]

Error to Hustings Court of Richmond.

Action by J. T. Childrey against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

The following are the instructions given:

"(1) The court instructs the jury that it was the personal duty of the defendant company to exercise ordinary care and diligence to furnish to and provide for the plaintiff sound and safe brakes and appliances with which to operate and brake the car in question, and to this end it was equally the duty of the defendant to exercise ordinary care to inspect and examine the brakes and appliances from time to time to discover and repair defects in them, and that these duties could not be assigned or delegated by the defendant to any of its employes so as to relieve the defendant of liability; and if the jury believe from the evidence that the said brake was in a defective or unsafe condition, and that the defendant knew, or by the exercise of ordinary care could have known, that the said brake which it provided for the use of the plaintiff on the car in question was defective or unsafe, and that it did not exercise ordinary care to discover or repair the same and the plaintiff was thereby injured without negligence on his part, then the defendant is liable for such injury and they will find for the plaintiff.

"(2) The court instructs the jury that the law presumes that the plaintiff exercised due and proper care at the time he was injured, and the burden of proving his contributory negligence is upon the defendant, unless such contributory negligence appears from the plaintiff's evidence.

"(3) The court instructs the jury that the plaintiff had the right to assume at the time he received the injuries in question that the defendant had furnished him with a reasonably safe brake for him to discharge his duties as brakeman for the defendant.

"(4) The court instructs the jury that if they believe from the evidence that the brake was in an unsafe, dangerous, or defective condition, and that the defendant knew, or by the exercise of ordinary care could have known, of its unsafe, dangerous, or defective condition in time to have notified or warned the plaintiff of said unsafe, dangerous, or defective condition and to have prevented him from using said brake, and that the defendant failed to do so, and that the plaintiff, by reason of the unsafe, dangerous, or defective condition of said brake, was injured while in the exercise of ordinary care on his part, then they must find for the plaintiff.

"(5) The court instructs the jury that a careful inspection means such inspection as a man of ordinary care and caution would make under the circumstances to discover the alleged defect in the brake, and that ordinary care and caution means such care and caution as are reasonably proportioned to the dangers to be avoided.

"(6) The court instructs the jury that under rule 661 of the Southern Railway Company, in evidence before them, it was the duty of the plaintiff, Childrey, to make such reasonable inspection for open and obvious defects in the brake on the train upon which he was working on the day of the accident, as his other duties, the time afforded him, and the other circumstances under which he was placed afforded him for the purpose, would permit. And, if the jury believe from the evidence that he failed or neglected to do so, and that the injury received by him was in consequence of such failure, then he cannot recover in this case, and they must find for the defendant. And, if the jury shall further believe from the evidence that the defendant company maintained a force of men, separate from the brakesman in its employ, whose special duty it was to inspect cars and trains made up, and see that they were in proper and reasonably safe condition for service before submitted to the trainmen (of whom the plaintiff was one) for use; and that, in accordance with such system, the car on which the plaintiff was injured underwent or should have undergone inspection by this force of men before the plaintiff was called upon or required to use it, then the jury are instructed that the defendant company, notwithstanding its said rule 661, assumed towards the plaintiff the duty of inspecting said car. That accordingly the plaintiff had the right to assume that this duty had been properly performed, when called upon to use the brake in question; and, if his injury resulted from the failure of the defendant company's inspectors to properly perform that duty, he is entitled to recover, unless the jury shall further believe that the plaintiff's own failure to inspect said brake amounted, under all the circumstances of the case, to want of ordinary care and caution for his own safety.

"(7) The court instructs the jury that the burden is upon the plaintiff to prove that the injury which he sustained was occasioned by some act of negligence on the part of the defendant company, as charged in the declaration, and that the evidence must show more than a mere probability of negligence. It is not sufficient that the evidence is consistent equally with the existence or nonexistence of negligence. There must be affirmative and preponderating proof of the defendant's negligence, and if the jury believe from the evidence that it is just as probable that the plaintiff's injury was occasioned by some cause for which the defendant company was not responsible, as from some cause for which it was responsible, then they must find for the defendant.

"(8) The court instructs the jury that it is their duty to try this case without being influenced by sympathy from the mere fact that the plaintiff was injured and has suffered, as the jury, as much as the court, are under the solemn obligation of an oath to decide according to the law and the facts, and without negligence by the defendant it cannot be held pecuniarily liable, and even if the jury believe from the evidence that the defendant has been negligent, if they further believe from the evidence that the plaintiff was also guilty of negligence and that his negligence contributed to any extent to his injury he cannot recover against the defendant.

"(9) The court instructs the jury that the defendant company was not a guarantor of the safety of the plaintiff, but was required to exercise ordinary care to furnish and maintain such appliances as are reasonably safe and adequate for the work to be performed, that the plaintiff was required to use ordinary care to avoid injury, and that, to entitle the plaintiff to recover in this case, the burden of proof is on him to show, first, that the brake or appliances used in connection therewith were defective and that such defect was the proximate cause of the injury; second, that the company knew or ought to have known they were defective in the exercise of ordinary care; and, third, that the plaintiff could not have, in the exercise of ordinary care, avoided the accident which resulted in his injury.

"(10) The court further instructs the jury that in assessing the amount of damages, if any, to which the plaintiff is entitled, they may take into consideration the extent of the injuries, the amount of physical and mental pain and suffering, and loss of time, andthe physical incapacity and the permanency or duration of the injury done to the plaintiff and ail facts and circumstances which tend to show the extent of the injury done and damages...