Va. Iron Coal & Coke Co v. Hughes' Adm'r

• Citation: 88 S.E. 88
• Court: Virginia Supreme Court
• Decision Date: 16 March 1916
• Parties: VIRGINIA IRON COAL & COKE CO. v. HUGHES' ADM'R.

88 S.E. 88

VIRGINIA IRON COAL & COKE CO.

v.HUGHES' ADM'R.

Supreme Court of Appeals of Virginia.

March 16, 1916.

Error to Circuit Court, Wise County.

Action by T. J. Hughes, as administrator of William W. Hughes, against the Virginia Iron Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

D. D. Hull, Jr., of Roanoke, Bullitt & Chalkley, of Big Stone Gap, and Jackson & Henson, of Roanoke, for plaintiff in error.

Wm. H. Werth, of Tazewell, and Bond & Bruce, of Wise, for defendant in error.

CARDWELL, J. This action was brought by T. J. Hughes, as the administrator of his deceased son, William W. Hughes, to recover of the defendant company, a coal mining corporation, damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of the defendant. There was a demurrer by the defendant to the evidence, which was overruled, and judgment rendered in favor of the plaintiff for $7,000, the damages assessed by the jury subject to the ruling of the court upon the demurrer to the evidence, to which judgment this writ of error was awarded.

in the petition for the writ of error complaint is made that the circuit court erred in overruling the defendant's demurrer to the declaration and amended declaration filed by the plaintiff in the cause, but in the oral argument of the case here this ruling of the circuit court was by counsel waived, and therefore does not require further consideration.

Plaintiff's intestate, at the time he lost his life in the mine of the defendant, May 30, 1914, was fifteen years and seven months old. He had been working in the mines of the defendant as a trapper boy and in other capacities for some time, certainly for a year or more. He had been working off and on as flagman on a motor, used in carrying in and bringing out coal cars from the mines, for six months or more, and pretty constantly for a month and a half or two months before the accident to him, though for several weeks immediately before he had been working as a car coupler. It appears that as a rule the motors are run by two men—that is, a motor-man and one brakeman—but, as the work on the entry where plaintiff's intestate was injured had become too heavy to be done by one brakeman, though not heavy enough to require two men to work as brakemen thereon, the defendant put plaintiff's intestate on to assist the regular brakeman. The decedent was called a flagman; that is, it was his duty to ride the "trips" of cars carried in and brought out of the mines for the purpose of flagging the motorman in case the trip should break loose, and also to flag against motors which might be approaching from the rear. It was likewise his duty to assist in shifting cars, etc., and at the time of the accident to him the motor was being run by one John Cochran, as motorman, a man by the name of Jim Gibson, as brake-man, and deceased, as flagman. This crew took some empties into the mine, and their purpose was to pull two loaded cars out of the mine. The two loaded cars which they wished to pull out were sitting on a cross-entry, or motor track, just to the left of a switch leading into a room (No. 16), called "loaded track." in order to get these two loaded cars out and leave the empties in the mine, it was necessary for the motor, when it reached the two loaded cars, to uncouple from the empty cars and push the two loaded cars into room No. 16 "in the clear, " then drop the empty cars by gravity down to the right of the switch point, and leave them on the motor track to the right of the switch point, and then pull out the loaded cars. The motorman (Cochran) did uncouple from the empty cars, and then pushed the two loaded cars on to the "loaded track" in room No. 16 just far enough to clear the motor track, and directed Hughes (plaintiff's intestate) to release the brakes on the empty cars and drop them down to the right of the switch point. The deceased did this, and then threw the switch to enable the motor, with the two loaded cars, to come on out to the motor track, and then he crossed over to the right-hand side of the track as it goes out of the mine, to a point near the switch point, his purpose being, as it appears to catch the trip—that is, the motor and the two loaded cars—as they went out, and ride on out to the drift mouth. After the empty cars had been dropped down to the right of the switch Cochran, the motorman, started out with the motor and the two loaded cars, going at a speed of about two miles an hour, "or about as fast as a man can walk." Deceased, according to Cochran's statement in his testimony as a witness for the plaintiff, and which is the only statement on the subject, was standing on the right-hand side of the track somewhere near the switch, the exact point at which he was standing not being given, but from the other facts and circumstances appearing from the evidence it would seem that he was standing a few feet to the right of or further in the mine than the switch point. As Cochran at the time was engaged in back-poling, and had to give attention to holding the trolley pole on the wire, he did not see deceased when he undertook to get on the trip. It was necessary to back-pole until the motor got out on the motor track, but after getting out on the motor track the motorman would then turn the trolley pole and go out with the pole trailing. Cochran was on the front of the motor as it was going out, and, speaking of what transpired about the time he passed the switch point, his statement is:

"I just glanced back and saw his [deceased] light, and I thought he was all right. I never looked back any more. * * * Yes; I saw his light about middle ways of the motor; I might say about middle ways of the rear bumper."

He further says that he then paid no further attention to deceased until he had run about 900 feet and stopped for the purpose of coupling up some cars which were at that point; that he then missed deceased, and went back to look for him, and found him about 46 feet from the switch point, apparently having been dragged from the switch point; that he was not then dead, but very badly mangled, having evidently been run over by the cars following the motor, and died the following night. Gibson, the brake-man at work with deceased on the trip ofcars being brought out of the mine at the time, was not examined as a witness in this case, and therefore Cochran is the only witness who undertook to give the details of how the accident happened; in fact, as it appears, he was the only one who knew anything about it.

The plaintiff's declaration, as amended, avers four grounds of negligence as entitling him to recover damages of the defendant in this action: (1) That the defendant was guilty of negligence in maintaining a defective switch at or near the point where the accident complained of occurred; (2) in running its cars which inflicted the injury upon the plaintiff's intestate at a rapid rate of speed; (3) in not putting the deceased to work under a mine foreman or assistant, or some other experienced worker, until he had opportunity to become familiar with the ordinary dangers incident to the work; and (4) because defendant owed deceased the duty to warn and instruct him as to any unusual or extraordinary dangers incident to the work, and the defendant! failed to perform this duty.

The first ground of the defendant's demurrer to the evidence relied on is:

"The evidence does not show that the defendant was guilty of any negligence which was the proximate cause of the accident complained of."

As observed, the first, and in fact the main, charge in the declaration is that the defendant was guilty of negligence in maintaining a defective switch at or near where the accident occurred; and it is specified that some of the bolts were out of the flange holding the switch point at the point rail, and also that the lever which was used to throw the switch was not in proper working condition, and that the switch point on this account did not close up against the track, but left an opening between the switch point and the track, which closed and opened as the cars ran over the same, and that the foot of the plaintiff's intestate was caught in this switch point as he attempted to board the cars by reason of the defective condition of the switch point. The point of plaintiff's contention in this connection is that the deceased, in trying to get on the motor, stepped in between the switch point and the right-hand rail of the main track, and that the car following the motor, when it ran on to the switch point, closed the switch against his foot and held it fast until he was run over by the car following the motor.

The evidence as to the condition and operation of the switch is given by L. L. Plummer, the first witness examined for the plaintiff, and the substance of his statement is that the switch was defective, in that after it was thrown for the purpose of letting cars in room 16 the point of the switch would sometimes spread away from the right-hand rail of the motor track, that is, the right-hand rail as the track runs out of the mine, and this would sometimes cause cars to take the wrong track, that is, would sometimes "split the witch, " as it is called. There was no difficulty, as it appears from the witness' statement, with cars coming out of the mine either on the motor track or coming out from room 16; but, when they undertook to push cars into room 16, owing to the fact that this switch point would spring away from the main track, they had to take care to see that they did not "split the switch." Asked as to how much space would be left between the point rail and the rail with which it connected when the switch point flew back, the witness answered that he did not know how much it would be.

"Q. in your judgment and opinion? A. It might be just the thickness of the flange of the wheel that passed over the switch, and it might fly farther; I could not tell...