Virginian Ry. Co. v. Linkous

• Citation: 230 F. 88
• Decision Date: 24 November 1915
• Docket Number: 1379.
• Parties: VIRGINIAN RY. CO. v. LINKOUS.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

230 F. 88

VIRGINIAN RY. CO. v. LINKOUS.

No. 1379.

United States Court of Appeals, Fourth Circuit.

November 24, 1915

H. T Hall, of Roanoke, Va., and G. A. Wingfield, of Norfolk, Va for plaintiff in error.

W. L Welborn and S. H. Hoge, both of Roanoke, Va. (Welborn &amp Jamison and Hoge, Williams & Darnall, all of Roanoke, Va., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

This action was instituted in the District Court of the United States for the Western District of Virginia by the administratrix of J. M. Linkous, deceased, against the Virginian Railway Company, to recover damages for the death of her intestate.

The plaintiff in error will hereinafter be referred to as defendant, and the defendant in error as plaintiff; such being the respective positions occupied by the parties in the court below.

The plaintiff set forth the grounds of her alleged cause of action in a declaration containing seven counts. The court sustained a demurrer to the second count, the third, fourth, fifth, and seventh counts were withdrawn by the plaintiff before issue was joined, and the case went to trial upon the first and sixth counts. The jury was instructed that there was not sufficient evidence to sustain a recovery under the sixth count, and we therefore only have to consider the alleged cause of action set up in the first count of the declaration.

This count alleges, in substance, that the negligence of the defendant consisted in the failure of the conductor, fireman, and front brakeman to intervene and prevent the effect of the plaintiff's intestate's failure to stop his train and observe the meet order at Keever. The jury returned a verdict in favor of plaintiff in the sum of $8,541, for which judgment was entered, to which defendant excepted, and the case now comes here on writ of error.

The plaintiff's interstate was the engineer on a coal train on the run from Roanoke to Victoria. This train was designated as 'Extra 468,' and ran on a contingent schedule under which the train had certain rights. When this train passed Altavista, a point about 23 miles west of Keever (the point near which the accident occurred), both the conductor and engineer received an order to meet and pass No. 33, the local west-bound freight train, at Keever. The local freight No. 33 was a regular train running on a regular schedule, under which it had certain rights. The local freight No. 33 received a similar order at Phenix, a station some distance east of Keever, the meeting point. In the absence of these orders, these trains, under their schedule rights, would have been required to meet and pass at Seneca, a station 6.1 miles west of Keever. The effect of this order was therefore to enable Extra 468 to proceed beyond Seneca, the regular passing point, and go on to Keever.

Extra 468 left Seneca with the engineer, the conductor, the fireman, and the front brakeman riding on the engine. The local freight No. 33 was directed to take the siding at Keever and allow Extra 468 to pass on the main line.

Under the orders issued, Extra 468 had no right to proceed beyond the east switch at Keever, unless the local No. 33 was in the clear on the siding at Keever. The testimony shows that no effort was made to stop No. 468 at Keever, and that it proceeded beyond the east switch, the engine working under steam to a point variously estimated from 1,500 to 2,500 feet east of the east switch at Keever, where it collided with the local No. 33. The engineer, fireman, and front brakeman on local No. 33 observed Extra 468 approaching at a distance of from 1,000 to 1,200 feet away. The engineer on No. 33 shut off steam, put on the emergency brake, and blew the stop signal. They then, seeing that a collision was imminent, jumped from their train and escaped uninjured.

It appears that engine No. 468 continued working steam up to the point of the collision, and there was no effort, so far as the testimony discloses, on the part of the plaintiff's intestate to stop his train. The four members of the crew of Extra 468 who were on the engine at the time of the collision were all instantly killed. The train orders under which Extra 468 was required to pass local No. 33 were found on the persons of plaintiff's intestate and the conductor of Extra 468 when their bodies were removed from the wreck caused by the collision. There is no explanation in the testimony of how or why the plaintiff's intestate and other members of the crew of Extra 468 disregarded the meet order at Keever.

The material sections of the Employers' Liability Act, in pursuance of which this suit was instituted, are as follows:

'Sec. 2. Every common carrier by railroad (engaging in commerce between any of the several states) shall be liable in damages to any person suffering injury while he is employed by such carrier (in such commerce) for such injury * * * resulting in whole or in part from the negligence of any * * * officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its * * * engines, appliances, machinery, etc.

'Sec. 3. In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employe, * * * the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe.'

It will be observed that, while one is employed by a carrier engaged in interstate commerce, such carrier shall be liable in...