Veale v. Norfolk & W. Ry. Co.

• Decision Date: 18 January 1965
• Citation: 205 Va. 822,139 S.E.2d 797
• Court: Virginia Supreme Court
• Parties: Curtis VEALE v. NORFOLK AND WESTERN RAILWAY COMPANY et al.

Page 797

139 S.E.2d 797

205 Va. 822

Curtis VEALE v. NORFOLK AND WESTERN RAILWAY COMPANY et al.

Supreme Court of Appeals of Virginia.

Jan. 18, 1965.

Leonard B. Sachs, Norfolk (Kanter, Kanter & Sachs, Norfolk, on brief), for plaintiff in error.

J. Riley Johnson, Jr., Thomas R. McNamara, Williams, Cocke, Worrell & Kelly, Norfolk, for Norfolk & Western Ry. Co., defendant in error.

Virgil S. Gore, Jr., Norfolk (Seawell, McCoy, Winston & Dalton, Norfolk, on brief), for Norfolk & Portsmouth Belt Line R. Co., defendant in error.

Before EGGLESTON, C. J., and BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

BUCHANAN, Justice.

The plaintiff, Curtis Veale, brought this action for damages against Norfolk and Western Railway Company (Norfolk and Western) and Portsmouth Belt Line Railroad Company (Belt Line). In his motion for judgment he alleged that he was an employee of Cargill, Inc., and while he was engaged in unloading a boxcar loaded with grain, a sliding door of the car fell from its mountings and injured his leg. He made these additional allegations:

The car was owned by Minneapolis & St. Louis Railroad Corporation. It had been delivered to Norfolk and Western to transport to South Norfolk, Virginia, to be delivered to the grain elevators of Cargill. The car had been emptied of its grain and the engineer of a diesel locomotive was preparing to take it away from the dumping area. The plaintiff was hand-signaling the engineer, the boxcar was coupled to the locomotive and moved backwards some distance, bringing the door of the car opposite the plaintiff, at which time the door fell.

The motion for judgment alleged that it was the duty of Norfolk and Western to inspect said car at regular and frequent intervals from the time it came into its possession, and to maintain and repair any and all defects found as a result of such inspection; and that the law imposed upon Belt Line the duty to inspect said car 'when it came into your custody and control immediately prior to the occasion complained of,' and to maintain and repair any defects noted prior to delivering the car to Cargill.

It was further alleged that the defendants negligently failed to inspect, maintain and repair the defective door and appurtenances of the car, and as a proximate result plaintiff suffered the injuries complained of.

Norfolk and Western demurred to the motion for judgment on the grounds that it was not the delivering carrier but an intermediate carrier and owed no duty to plaintiff, and even if it had been negligent, such negligence could not have been the proximate cause of the plaintiff's injuries. Belt Line demurred on the ground that it owed no duty to the plaintiff. By the order appealed from the demurrers were sustained and the plaintiff's action dismissed.

Supplementing the allegations of his motion for judgment, the plaintiff states in his brief that plaintiff's primary responsibility as Cargill's employee was to assist in dumping railroad cars loaded with grain, to assist in positioning the cars on the hydraulic grain dumper, to open and close the cars and couple and uncouple them; that this car was turned over to Belt Line upon arrival in the area and delivery of the car to the Cargill premises was made by Belt Line.

Plaintiff further states that on the Cargill premises a switch engine, operated by a Cargill employee, places the grain cars on track owned or leased by Cargill, and when ready for dumping this engine moves the cars into position on the hydraulic dumper where plaintiff performed his duties; that at the time of this accident the engineer of the switch engine was backing the engine in order to couple with the empty car and remove it, and when the engine 'jolted the empty car' the plaintiff saw the sliding metal door falling towards him.

Plaintiff assigns error to the sustaining of the demurrers and dismissing his suit. He says the court did this on the authority of Risque v. Chesapeake & Ohio Ry. Co., 104 Va. 476, 51 S.E. 730, which he states is contrary to the common law rule of third party tort-feasor liability in this State and should now be overruled. The record does not show the court's reasons for sustaining the demurrers and defendants say that ample additional authority was given to the court as basis for its action.

In the Risque case the plaintiff's decedent, an engineer employed by an iron company, and engaged in shifting cars on the company's yard, was killed when he backed his engine onto the main line of the defendant railway company in the path of an approaching passenger train without looking, although he knew it was due. The court held that the defendant's demurrer to the evidence was properly sustained because the plaintiff's decedent was guilty of negligence that could only be characterized as reckless. The opinion also stated that a demurrer to two counts in the plaintiff's declaration, which charged the defendant with negligence in furnishing cars with defective brakes, was properly sustained because it was the duty of the iron company to inspect the cars and remedy the defect, and not the duty of the defendant railway company. It does not appear from the opinion that any causal relation existed between the defective brakes and the happening of the accident, or what the contractual relation was between the iron company and the railway company. The decision was that the liability, if any, rested only on the iron company, and the holding is not conclusive of the present case.

In many cases we have recognized and applied the principle that if liability of a third party tort-feasor exists it is not taken away from the employee by the compensation laws which control his right against his employer. Feitig v. Chalkley, 185 Va. 96, 101, 38 S.E.2d 73, 75. In Fauver v. Bell, 192 Va. 518, 526, 65 S.E.2d 575, 580, we said:

'The [Workmen's Compensation] Act* does not deny an injured employee the right to pursue his action at law against a negligent third party. The rights and remedies granted under section 65-37 [of the Act] are exclusive only as to an employee and his employer, and only his right to sue his employer for damages is barred by the acceptance of compensation under the Act. * * *'

But the common law right is based on negligence, and negligence is the violation of a legal duty which one owes to another, and where there is no legal duty there is no actionable negligence. 13 Mich.Jur., Negligence, § 2, p. 508. And negligence, of whatever kind, cannot create a cause of action unless it is the proximate cause of the injury complained of....