Staton v. Virginian Ry. Co.
| Decision Date | 01 March 1938 |
| Docket Number | 8651. |
| Citation | 195 S.E. 601,119 W.Va. 658 |
| Parties | STATON v. VIRGINIAN RY. CO. |
| Court | West Virginia Supreme Court |
Submitted January 25, 1938.
Syllabus by the Court.
1. In an action to recover damages under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59 for a violation of the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq., a declaration, otherwise sufficient need not allege specifically that the action is brought under either one or both of said acts of Congress.
2. An amended declaration which is filed in the clerk's office at rules after the case has been matured for trial is, in absence of an agreement or a remand to rules, a fugitive paper and not a part of the record.
3. No recovery can be had in an action under the Federal Employers' Liability Act for failure to comply with the Federal Safety Appliance Act unless there is evidence sufficient for a jury to infer that the violation of the latter act was a proximate cause of the injury complained of.
4. Where it is a matter of conjecture as to whether an injury occurred as a proximate result of a violation of the Federal Safety Appliance Act, or some other cause for which the defendant was not responsible, there can be no recovery.
Error to Circuit Court, Wyoming County.
Action by Bertha Staton, administratrix of the estate of Russel Staton, deceased, against the Virginian Railway Company to recover damages for the death of deceased. To review a judgment for defendant, plaintiff brings error.
Judgment affirmed.
Lilly & Lilly and Grover C. Worrell, all of Charleston, for plaintiff in error.
John R Pendleton, of Princeton, and M. P. Howard, of Pineville, for defendant in error.
Bertha Staton, administratrix of the estate of Russel Staton, deceased, instituted this action against the Virginian Railway Company to recover damages for the death of her decedent, ascribed to the failure of the defendant, an interstate carrier, to provide with an efficient hand brake a gondola car attached to a train on which the decedent was the head brakeman. Error is prosecuted by the plaintiff to a judgment, on a jury verdict, for defendant.
It was plaintiff's contention that the brake was defective in that it would slip, due to a worn pawl, when a certain amount of tension was placed thereon in setting it, and that, while setting the brake, it slipped and threw decedent from the car, causing fatal injuries. From the allegations of the declaration, it is clear that, although there are no specific allegations to that effect, recovery is sought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, for a violation of the Federal Safety Appliance Act, 45 U. S.C.A. § 1 et seq. Such specific allegations are unnecessary. 2 Roberts Federal Liabilities of Carriers, 2d Ed., § 993; Easter v. Virginian R. Co., 76 W.Va. 383, 86 S.E. 37, 11 N.C.C.A. 101.
The paper appearing in the record denominated "Amended Declaration," wherein plaintiff seeks to charge defendant with additional violations of the Federal Safety Appliance Act, has no place in this action. The case had been matured and continued twice before said paper was filed at rules. No process was issued to answer it; and it was not filed by leave of court. Code 1931, 56-4-24, 56-4-25. The so-called "Amended Declaration" is nothing more or less than a fugitive paper; so our consideration of the record must be based solely on the original declaration, the allegations of which, as heretofore indicated, are confined simply to a failure to provide an efficient hand brake.
At the time of the accident, two cars, which had been loaded at Grundy, Va., were being moved to an unloading position on a side track at Mada, W.Va. The cars were next to the engine, and the air brake had not been disconnected. The decedent, the head brakeman, who had gone forward to set the brake of the rear car, was, when last seen, in the vicinity of the brake. No witness was able to testify that a defect of the brake caused the injury. Only two witnesses, Branscome and Manning, saw decedent directly before the injury, and they were unable to say that the brake caused decedent's death.
Mr. Branscome, who had assisted in loading the flat and gondola cars at Grundy, Va., the day before, was between the main track and the side track, for the purpose of indicating where he wanted the cars dropped. He testified that as the engine was pulling the flat and gondola cars westward past him, Staton had his hand on the top of the gondola car, and was setting, or ratcheting, the brake; that after he had passed, witness started walking behind the gondola car, which was going from four to six miles per hour; that he could see the top of Staton's head, and the next thing he saw was when Staton dropped down or rolled off the rail between the tracks; that witness was looking down the track part of the time, and was going to wave them down when they got to the right place. Manning, a brakeman, testified that he and Staton were on the east end of the gondola car when the train started forward (west); that Staton "got over in this car and went to the west end and set the brake"; that he "put his arm over in I believe his right arm over in the car hooked it over in the car and partly turned around on the board at the brake," "turned around like he was making an attempt to get off." Witness' attention was attracted to the slide alongside the track, and the next time he saw Staton, the latter was lying between the siding and the main track.
Immediately thereafter, the trainmaster, in the presence of the conductor, examined the brake and found it tightly set. In addition to the foregoing, and as part of res gestae witnesses testified that the decedent, upon being questioned as to how it happened, stated, "I made a misstep," "I missed my step," or a...
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