Vickers v. Kanawha

• Citation: 64 W.Va. 474
• Court: Supreme Court of West Virginia
• Decision Date: 09 December 1908
• Parties: Vickers v. Kanawha & West Virginia Railroad Co.

64 W.Va. 474

Vickers

v.Kanawha & West Virginia Railroad Co.

Supreme Court of Appeals of West Virginia.

Submitted June 11, 1908.

Decided December 9, 1908.

1. Master and Servant Competency of Employee.

The general rule, subject to exceptions, is that where one has contracted with a competent and fit person exercising an independent employment to do a piece of work not in itself unlawful, or of such a nature that it is likely to become a nuisance, or to subject third persons to unusual danger, according to the contractor's own methods, and without being subject to control except as to results of his work, will not be answerable for the wrongs of such contractor, his sub-contractors, or his servants, committed in the prosecution of such work. (p. 477.)

2. Same Place of Employment.

But with respect to railroads, the non-assignable duty of the master to provide its servant a reasonably safe place to work, extends to the entire track over which the servant is required to pass in the discharge of his duties, and this is a positive duty, which although entrusted to an independent contractor, will not absolve it from liability for the non-performance thereof. (p. 477.)

3. Same Sub-Contractor.

Where one is employed by a railroad company as an independent contractor to do certain work in the construction of its road bed, in all matters incident to the use of its tracks permitted by such company, the contractor and his workmen represent the will of the company, and its responsibility remains. (p. 478.)

4. Same.

Although a railroad company employ a competent independent contractor, to do certain work, and in the execution of his contract permits him to suspend over its tracks guy-ropes, the effect of such contract, with respect to such ropes, is simply to delegate to such independent contractor performance of the non-assignable duty of such company, to maintain a reasonably safe place for its servants to work, rendering it liable for his negligent performance thereof. (p. 478.)

5. Same.

Where a railroad company has permitted the erection of guy ropes over its tracks, by an independent contractor employed to perform a part of the work of constructing its road bed, it, will, nevertheless, be rendered liable for any negligence on the part of such independent contractor in relation to such guy-ropes, whether competent or not, although it may not have had actual notice of such negligence in time to have avoided injury to its servant resulting there- from. In such cases the law requires inspection and tests adequate to avoid the dangers. (p. 479.)

6. Same Relationship.

Where a railroad company entrusts performance of any of its positive duties to its servants, to an independent contractor, his relationship to the defendant becomes that of vice-principal, and his negligent performance of those duties becomes notice to his principal, rendering it liable for injuries to its servants resulting therefrom. (p. 479.)

Appeal from Circuit Court, Kanawha County.

Suit by Charles Vickers, infant etc., against the Kanawha & West Virginia Railroad Company. Judgment for defendant and plaintiff appeals.

Reversed and New Trial Awarded.

Wertz & Van Fleet, for plaintiff in error.

Chilton, McCorkle & Chilton, for defendant in error.

Miller, Judge:

This case is a companion of New house v. Kanawha & W. Va. R. Co., 59 S. E. 1071. In that case, as in this, the courtbelow sustained the motion of the defendant to strike out the plaintiff's evidence and direct a verdict for the defendant. We reversed the judgment below in the Newhouse case, being of opinion, that the evidence made such a prima facie case of negligence as entitled the plaintiff to have the same submitted to the jury. Since that decision, but pending a petition here for a re-hearing, this case was tried and determined in favor of the defendant, as stated.

The plaintiff, an infant, was employed by defendant, along with Newhouse and others as a clay laborer, in building a railroad from Charleston by the way of Elk River and Blue Creek to a point on said Creek. The road was not completed, but some trains were being; run while the work of construction was still going on. The plaintiff by arrangement with the company, was with the other laborers carried to and from his place of employment along the road, and to and from his boarding place, on the work train of the defendant, consisting of an engine and a flat car. At a point near the defendant's track on Blue Creek, was a stone quarry, and where, by permission of the company, a derrick used in load- ing stone had been erected by one Tully, an independent contractor. The derrick was supported by four guy ropes, two of which were stretched across and made fast on the opx > osite side of defendant's track. May 23, 1906, the day of the accident, at three o'clock P. M., the work train, on which plaintiff was a passenger, on its outward trip passed safely under these guy-ropes, as it had been doing daily for two or three months; being delayed at that point, not, as shown in the Newhouse Case, by the sagging of the guy-ropes oyer the track, but by the act of some workmen employed there in dragging a rope across the track. On the return trip that day, however, between five and six o'clock in the evening, in attempting to pass under the ropes the cab of the engine caught the first of the ropes, dragging the other down and causing it to sweep across the flat car being pushed by the engine, and to drag the plaintiff off between the car and the engine, the engine passing over both his legs, mashing them, and resulting in their amputation, one at the knee joint, and the other between the knee and ankle. It was proven at the trial that on the day of the injury the derrick was being dismantled; that a car for removing it had been set there for that purpose, and that some thirty, minutes before the work train reached that point on its return trip these guy-ropes across the track had been loosened by some men employed by Tully, the contractor, causing them to sag, resulting in the injury to the plaintiff, and for which this action is brought.

It did not appear in the Newhouse Case that the derrick in question belonged to Tully, and had been employed by him as an independent contractor, and, as now appears in this case, that the accident, resulting in the injuries to plaintiff, was directly traceable to the negligence of Tully, or his employees, in loosing the guy-ropes and allowing them to sag, and to remain in that condition, as stated, when encountered by the work train.

The general rule, relating to master and servant, requiring evidence of some affirmative acts of negligence of the master, either of omission or commission, pertaining to his duties to his servant, in order to render him liable to the servant for injuries sustained, was thought, in the Newhouse Case, to be satisfied by the evidence tending to show the sagging of the guy-ropes, and notice thereof to the defendant on the out-

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ward trip, which, until explained by defendant consistent with the exercise of due care, entitled the plaintiff to a submission of his case to the jury.

In the Newhouse Case the defendant relied on the want of evidence to show negligence of the defendant. In the present case negligence is not only shown but admitted. But the defendant relies on the proposition that the negligence being primarily that of Tully, an independent contractor, or his employees, its whole duty to the plaintiff to provide him with a reasonably safe place to work, was discharged when it employed Tully, a competent person, and permitted him to suspend the guy ropes in question over its track, and, as counsel for defendant say in their brief, we are brought face to face with the question, what is the duty of a railroad company under the circumstances of this case?

The general rule with respect to the liability of the owner for the acts of an independent contractor, as stated in 1 Thomp. on Neg. section 621, is "that one who has contracted with a competent and fit person exercising an independent employment to do a piece of work not in itself unlawful, or of such a nature that it is likely to become a nuisance, or tosubject third persons to unusual danger, according to the contractor's own methods, and without being subject to control except as to results of his work, and subject to other qualifications hereafter stated, will not be answerable for the wrongs of such contractor, his sub-contractors or his servants, committed in the prosecution of such work, "

The general rule, stated in the Newhouse Case, is that one of the non-assignable duties of a master is to provide his servant a reasonably safe place to work, this rule with respect to railroads, extending to the entire track over wich the servant is required to pass in the discharge of his duties. And with respect to railroads this is a positive duty, which although entrusted to an independent contractor, will not absolve it from liability for non-performance. 1 Thomp. on Neg. sections 646-665; McCafferty v. Spuyten Duyvile, etc., R. Co., 61 N. Y. 178; Ryder v. Thomas, 13 Hun. (N. Y.) 296.

But let us inquire whether Tully, the contractor, stood in the relation of independent contractor with respect to the operation of the railroad and furnishing the plaintiff a rea- sonably safe place to work? Assume that he had an independent employment to build abutments etc., and permission of the railroad company to stretch his guy-ropes across the track of the company, can it be said he thereby extended his position to that of an independent contractor with reference to the operation of the railroad of the defendants? We think not. He was employed for no such purpose. The permission to stretch his guy-ropes across the track undoubtedly implied a contract on his part to securely fasten them, and to protect the defendant and its servants from all dangers resulting from the breach of such implied contract; but this implied agreement would certainly not...