Virginian Ry. Co. v. Early
| Decision Date | 12 August 1942 |
| Docket Number | No. 4945.,4945. |
| Citation | 130 F.2d 548 |
| Parties | VIRGINIAN RY. CO. v. EARLY. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John R. Pendleton, of Princeton, W. Va., and Walter C. Plunkett, of Norfolk, Va., for appellant.
Walter G. Burton, of Princeton, W. Va., and Joseph M. Sanders, of Bluefield, W. Va., for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
This suit against the Virginian Railway Company for damages for the death of Everett W. Early under the Federal Employers' Liability Act, 45 U.S.C.A. § 59, turns primarily on the question whether the deceased at the time of the accident, which is said to have caused his death, was acting within the scope of his employment. The facts in this respect are not in dispute. Early was a machinist in the employ of the railroad's shops at Elmore, Virginia, which was 34 miles distant from his home at Princeton, Virginia. As was his custom, he came to work on March 8, 1940, the day of the accident, in the automobile of a friend. After parking the car on a railroad lot beside a small stream, the men walked across a railroad bridge and into the shops without entering the railroad yard, arriving at the shops at least 20 minutes before 7 A. M. when they were due to begin work. It was quite usual for Early upon arrival in the morning and before going to work to leave the shops and go to the boarding house and lunchroom of Sands & Co. for a cup of coffee. He did so on the morning of the accident. The lunchroom was located in a building belonging to the Railway Company beside the tracks, about one-fourth of a mile distant from the shops. It could be reached from the shops by using the tracks or the paths along side the tracks in the railroad yard or from the highway by crossing a bridge over the Guyandot River and then using the tracks or the paths; but in either case, it was necessary to cross the tracks in the yard.
By arrangement with the Railway Company Sands & Co. operated a boarding house and restaurant for the benefit and convenience of the employees who were accustomed to use the railroad yard in going to and from the place. The employees were not obliged to deal with Sands & Co. but when they did so, the indebtedness incurred was deducted from their wages under an assignment and paid direct to it by the Railway Company. There can be no doubt that with the knowledge and approval of the Railway Company the establishment was conducted for the convenience of its employees who made up nearly all of the customers. Moreover, it is clear that for a long time the employees of the Railway Company, with its knowledge and approval, constantly made use of the railroad yard in passing back and forth between the railroad shops and the lunchroom. The company did not object to the use of the tracks for this purpose, although it had a rule forbidding employees to walk on the tracks except in the performance of duty.
It was during Early's return from the lunchroom about ten minutes before 7 on March 8 that the accident occurred which is said to have caused the injury that resulted in his death. When he reached a point about 200 feet from the machine shops, a fireman in the company's employ opened the blow-off valve of an engine running on a nearby track and Early was forcibly struck by the escaping water and steam. The fireman testified that before opening the valve, he looked to see if any one was in a position to be hit by the escape and seeing no one, proceeded with his task. But there was nothing to prevent him from seeing Early as he approached, and the jury might reasonably have inferred from the evidence as a whole that the accident would not have happened if the fireman had used due care to prevent it. The evidence tended to show that Early was knocked down by the force of the blow and that he rolled over a rail out of the path of the engine. He then went on to the shop where he angrily complained of the fireman's conduct, changed his wet street clothes, checked in and went to work. He made no complaint at the time of any pain from the accident. However, when he reached home that evening he complained of pain in his left thigh and his wife found a reddish blue place on his left thigh about the size of her hand, and on that and following days she rubbed it with liniment. Later he told the doctors who attended him that he had fallen over a rail and hurt his thigh. He continued to work until the 16th of March complaining, meanwhile, of his leg. The doctor was called in on March 16 and found him running a high temperature and noticed a place on the left thigh like a bruise at least a week old. Later Early developed an abscess at this point on his leg and was taken to the hospital where the abscess was opened and drained. He did not do well and although he subsequently left the hospital, it was later necessary to reopen the abscess. Finally on May 22 he died as a result, in the doctor's opinion, of a blood stream infection and empyema brought on by the abscess. Such an abscess, in the opinion of the physician, could have resulted from such a fall.
Upon this state of facts the District Judge instructed the jury that at the time of the accident, Early was acting in the capacity of an employee of the Railway Company and was entitled to the benefits of the Federal Employers' Liability Act. The defendant objected on the ground that at the time Early was not engaged in the duties of his employment but was at best only a licensee using the railroad premises for his own convenience, because he voluntarily left his place of work after he reached it by a safe and direct route and went to another part of the railroad property for a purpose disconnected with his duties. On this theory the defendant prayed for a directed verdict or at least a submission of the question to the jury. But these requests were refused by the judge who regarded the question as one of law on undisputed facts and decided it in the plaintiff's favor. In order to sustain this ruling, it is not sufficient to find that the plaintiff was a licensee entitled to the exercise of that degree of care on the part of the Railway Company which is outlined in the opinion of this court filed this date in Holcombe v. Buckland and Doss, 4 Cir., 130 F.2d 544. The instant case was tried under the provisions of the Federal statute which are applicable only where the relationship of employer and employee exists.
It is conceded that the scope of employment includes not only actual service, but also those things necessarily incident thereto, such as going...
To continue reading
Request your trial
-
Sassaman v. Pennsylvania R. Co.
...Nor do the cases of North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159, Virginian R. Co. v. Early, 4 Cir., 130 F.2d 548, or Chicago, M., St. P. & P. R. Co. v. Kane, 9 Cir., 33 F.2d 866, lay down any different rule as to the extent of the premises ......
-
Elliott v. St. Louis Southwestern Ry. Co.
...is a necessary incident of the assigned work, include: Morris v. Pennsylvania R. Co. (2nd Cir.), 187 F.2d 837; Virginian Ry. Co. v. Early (4th Cir.), 130 F.2d 548; Kooker v. Pittsburgh & Lake Erie R. Co. (6th Cir.), 258 F.2d 876; Hatfield v. Thompson, Mo., 252 S.W.2d 534; and, Chicago, M. S......
-
Romero Reyes v. Marine Enterprises, Inc.
...Pac. Ry., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959); Morris v. Pennsylvania R.R., 187 F.2d 837 (2d Cir. 1951); Virginian Ry. v. Early, 130 F.2d 548 (4th Cir. 1942). This was not a case where the evidence of employment could be said to be inadequate as a matter of law.2 See Restatemen......
-
Ward v. Atlantic Coast Line Railroad Company
...Coast Line R. R. v. Meeks, Tenn.App., 208 S.W.2d 355, certiorari denied 333 U.S. 827, 68 S.Ct. 453, 92 L.Ed. 1112, and Virginia Ry. Co. v. Early, 4 Cir., 130 F.2d 548, both involved injuries to employees who were engaged in activities "necessarily incident" to actual service for the railroa......