Torians v. Richmond & A. R. Co

• Citation: 4 S.E. 339,84 Va. 192
• Court: Virginia Supreme Court
• Decision Date: 01 December 1887
• Parties: ToRiANs v. Richmond & A. R. Co.

4 S.E. 339

84 Va. 192

ToRiANs

v.Richmond & A. R. Co.

Supreme Court of Appeals of Virginia.

December 1, 1887.

Master and Servant—NEGLir, ence—Fellow-Servant—Derailment or Train.

In an action to recover damages against a railroad company for the negligent killing of plaintiff's intestate, while in the employ of such company as brakeman on a material-train, it was shown that the immediate cause of intestate's death was the rapid running of the train, suddenly accelerated by putting on additional steam, over a track left in an uneven and weakened condition by other employes of the defendant company, whose duty it was to repair the track in question, and who failed to give warning of the dangerous condition of the road. Held, that the negligence of such employe was the negligence of the company, and that plaintiff's Intestate was not a co-employe.

Error to circuit court. Nelson county; Wingfield, Judge.

Action to recover damages for the negligent killing of plaintiff's intestate. Plaintiff's intestate was in the employ of the defendant, the Richmond & Alleghany Railroad Company, as rear brakeman on a material-train, and, while in the proper discharge of his duty as such brakeman, was killed in a wreck of his train which was caused by a defective track of defendant's, over which intestate's train was at the time of the accident engaged in switching. Judgment for defendant below. Plaintiff below obtained a writ of error.

R. T. Huhard, for plaintiff in error. Williams & Boulware, for defendant in error.

Richardson, J. This is a writ of error to a judgment of the circuit court of Nelson county, rendered March 21, 1882, in an action of trespass on the case, wherein E. B. Spencer, administrator of Robert Torians, deceased, was plaintiff, and the Richmond & Alleghany Railroad Company was defendant. The object of the suit, which was brought under the statute, (Code 1873, c. 145, § 7 et seq,) was to recover the sum of $10,000, as damages for the alleged negligent killing of the plaintiff's intestate by the defendant company's agents on the twenty-fifth of July, 1881, on its track, near Gladstone, in said county. Issue was joined on the defendant's plea of not guilty. At the trial, when the jury had heard all the evidence on both sides, and the arguments of counsel, they returned their verdict in favor of the defendant. Whereupon the plaintiff moved the court to set aside the verdict as contrary to the law andevidence; which motion the court overruled, and proceeded to give judgment according to the verdict of the jury. To this ruling and judgment of the court the plaintiff excepted, and in this bill of exceptions the court certified the evidence, and the plaintiff obtained a writ of error and supersedeas to said judgment.

As to the material facts involved in this controversy there seems to be no substantial conflict in the evidence adduced by the plaintiff and the defendant respectively. Whatever conflict exists is only as to the inferences deduced from the facts by the witnesses for the plaintiff, and those deduced from the same facts by the witnesses for the defendant. the plaintiff's intestate was an employe of the defendant company, and engaged as a fellow-servant on the same train with George Moon, who was killed on the same day and by the same accident by which the plaintiff's intestate was killed. Moon's administrator also sued the company to recover damages for the negligent killing of said Moon, and in that case, also, there was, by reason of misdirection by the trial court, a verdict and judgment for the defendant, and the case came before this court on writ of error, and the judgment was reversed. See Moon's Adm'r y. Railroad Co., 78 Va. 745. The evidence in that case is fully stated in the opinion of the court. The facts in that case and in this are identical, and naturally there is a substantial conformity in the evidence.

When the plaintiff's intestate was killed, he was at his post of duty on the material-train of the defendant, was in the due and faithful discharge of his duties as an employe of the defendant company, as a train hand in the capacity of rear brakeman, and did not contribute to his death by any negligence of his own. In fact, the defendant company itself proves that all its officers and men of that train were acting within its rules, and that, although the train was running at the time with the engine reversed, it was conformable to the usages of the company. It was also proved that the defendant company had acquired the property, rights, and franchises of the.lames River & Kanawha Company, under an act of the general assembly of Virginia, comprehended in and made a part of defendant company's purchase of said rights and franchises, whereby it was required to construct and equip a railroad up the.Tames River valley from Richmond to Clifton Forge, within 20 months, which had to be a flrst-class railroad, with steel rails, and equipped with ample accommodations, etc. Acts 1878-79, c. 139, pp. 119, 120; Acts 1879-80, c. 181. § 3, p. 173. It is proven, too, that the company had advertised to the public that its work had been completed according to contract, and...