Turner v. Richmond & R. R. Ry. Co

• Citation: 92 S.E. 841
• Court: Virginia Supreme Court
• Decision Date: 14 June 1917
• Parties: TURNER. v. RICHMOND & R. R. RY. CO.

(121 Va. 194)

92 S.E. 841

TURNER.

v.RICHMOND & R. R. RY. CO.

Supreme Court of Appeals of Virginia.

June 14. 1917.

Error to Circuit Court, Henrico County.

Action by Charles Turner, a minor, by his next friend against the Richmond & Rappahannock River Railway Company. Judgment for defendant on second trial after verdict for plaintiff was set. aside, and plaintiff brings error. Reversed, and judgment entered for plaintiff upon the original verdict.

Smith & Gordon and James F. Minor, all of Richmond, for plaintiff in error.

Williams & Mullen and Thos. P. Bryan, all of Richmond, for defendant in error.

WHITTLE, P. Charles Turner, a minor 17 years of age, who at the time of the grievance complained of was an employe of the defendant in error, brought this action by his next friend to recover damages for personal injuries inflicted upon him from being kicked by a mule, the property of the defendant.

There had been two trials of the case. The first resulted in a verdict for the plaintiff for $2,000, which the court set aside, and to that ruling the plaintiff excepted. At the second trial, the plaintiff declined to introduce any evidence and suffered a verdict to be found for the defendant, which verdict he moved to set aside and excepted to the action of the court overruling that motion and entering judgment for the defendant. In these circumstances, this court must review the proceeding on the first trial, and if it shall find that error was committed in setting aside the first verdict, it must annul all proceedings subsequent to that verdict, and render judgment thereon. Code, § 3484; Burks' PI. & Pr. pp. 602, 603.

From the standpoint of a demurrer to the evidence by the defendant, the material facts are these: The defendant was engaged in constructing a railroad from the city of Richmond to Old Church, in Hanover county, and had employed in the work about 50 or 60 mules. These animals, at the time of the accident, were housed in a large stable located in Henrico county. The building was equipped with mangers on each side, but was not divided into separate stalls. C. L. Ruffin was the superintendent of the railroad company and E. W. Thomas the general foreman in charge of the department comprising the live stock and the employes who cared for and worked them. Plaintiff had been in the employment of the defendant for a few days as timekeeper when a vacancy occurred in the position of stable boss, and Thomas, with the approval of Ruffin, transferred the plaintiff to that place. His duties as stable boss consisted in looking after and caring for the stock and seeing that they were properly fed and harnessed. He had not had much experience with mules, and had only served as stable boss for a week or 10 days when the accident happened.

On November 4, 1915, Thomas ordered the plaintiff to drive up a certain bay mare mulefrom the stable lot to a manger in the stable and help to catch her. Turner, in obedience to that order, drove the mule into the stable and started to go towards her head to lay hold of the strap around her neck, when, as he expressed it, "that's all I can remember." The plaintiff was carrying out instructions by the direction and in the presence of Thomas, who followed him into the stable and was standing by with a stick in his hand Thomas testified:

"I said, 'Get up; the mule will kill you down there.' He said, 'I can't get up.' I helped him up, and called the blacksmith, and we took him out. * * *"

This particular mule was shown to be of an unusually vicious and dangerous disposition. Indeed, she might well be characterized (as was another mule in one of the cases j cited) "a lurking devil." The witnesses testified that:

The mule was worked very seldom because Thomas could not get any driver to work her, "and he kept her in the back stall." "When they turned the others out, they turned her out too." "A man would go and lean over the feed box and snap the halter ring, and let her go; and when she came back a man would lean over the box and snap it again."

It was shown that Thomas knew that the animal was an unusually vicious and dangerous animal, and that nobody could handle her. He told the plaintiff's father that:

She was "a bad, kicking mule." "I said, 'Did you tell the boy that?' He said, 'No, I never did; *' * * I overlooked that; I am sorry it happened; I ought to have told him.' "

Plaintiff was carried to the Retreat for the Sick, in Richmond, where two physicians attended him, and he was in the hospital for 16 days. One of the attending physicians says:

"His nose was broken, his cheek bone fractured, and the upper jaw had been crushed in. * * * Practically the whole side of his face was caved in * * * and a good many of his teeth were knocked out."

Another physician, after speaking of his suffering, says:

" * * * Possibly after a year or two he developed hemorrhages from the nose, so much so that I sent him to a specialist;" and he underwent an operation for that trouble.

We are of opinion that the controlling questions in the case are assumption of risk and contributory negligence, and that both were jury questions under the evidence in this case.

"Whether or not a servant knew or ought to have known of the dangerous condition of his place of work and hence assumed the risk thereof is a question for the jury, when the danger is not so open and obvious and not so apparent * * * as to charge him with knowledge thereof as a matter of law." Powhatan Lime Co. v. Whetzel's Adm'x, 118 Va. 161, 86 S. E. 898; C. & O. Ry. Co. v. Meadows, 119 Va. 33, 89 S. E. 244. As to the contributory negligence rule, see Southern By. Co. v. Jones, 118 Va. 685, 88 S. E. 178.

Both questions were resolved by the verdict of the jury in favor of the plaintiff at the first trial on conflicting evidence, and the verdict ought not to have been disturbed, provided the ease was fairly submitted to the jury on the instructions.

The court gave 11 instructions, the correctness of only 2 of which (Nos. 2 and 3) is drawn in question here.

No. 2 is as follows:

"The court, however, instructs the jury that the risk of injury by a vicious and dangerous mule, about which he has to work, but of the vicious and dangerous character of which he did not know and could not have found out by the exercise of ordinary care, and was not warned by defendant or its employes, who knew or ought, in the exercise of reasonable diligence, to have known thereof, and if the jury believe from the evidence such to have been the fact, was not one of the ordinary risks assumed by plaintiff by virtue of his employment, and if he was injured thereby, and was free from contributory negligence himself, they must find for the plaintiff, unless they further believe that said danger was so obvious and plain that plaintiff, considering his age and experience, must be presumed to have been aware of said danger."

The specific objection to this instruction is to the incorporation therein of the words, "or its employes." If the plaintiff had knowledge, no matter how that knowledge was obtained, of the vicious and dangerous nature of the mule, such knowledge would defeat his right to recover, because if he knew the vicious and dangerous propensities of the animal, he would be held to have assumed the risk. Therefore an instruction, the tendency of which was to increase the plaintiff's sources of knowledge, must inure to his prejudice and to the benefit of the defendant, and such was...