Walton v. Miller's Adm'x

• Decision Date: 14 January 1909
• Citation: 63 S.E. 458,109 Va. 210
• Court: Virginia Supreme Court
• Parties: WALTON, WITTEN & GRAHAM . v. MILLER'S ADM'X. MILLER'S ADM'X . v. NORFOLK & W. RY. CO.

63 S.E. 458

109 Va. 210

WALTON, WITTEN & GRAHAM .

v.MILLER'S ADM'X.

MILLER'S ADM'X .

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

Jan. 14, 1909.

1. Negligence (§ 15^*)—Joint Tort-Feasobs.

Where the negligence of two parties produces a single and indivisible injury, they are joint tort-feasors, though acting independently.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 18; Dec. Dig. § 15.*]

2. Death (§ 33*)—Persons Liable — Joint Tort-Feasors.

If the negligence and lack of ordinary care on the part of one party and the negligence andlack of ordinary care on the part of another are the efficient and proximate cause of a death, both are liable as joint tort-feasors, though there was no common duty, design, or concert of action between them.

[Ed. Note.—For other cases, see Death, Cent. Dig. § 49; Dec. Dig. § 33.^*]

8. Negligence (§ 55*)—Accidents to Trains

—Obstructions on Tracks—Liability of

Contractor.

Contractors, engaged in excavating along a railroad's right of way, for the purpose of double tracking, owe to the trainmen the twofold duty of exercising ordinary care not to obstruct the track, and, in the event that they do so, to use like care to warn them in time to enable them by the exercise of reasonable care to protect themselves from danger, and failure to discharge either duty constitutes actionable negligence.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 68; Dec. Dig. § 55.*]

4. Negligence (§ 139*)—Accidents to Trains —Obstructions on Tracks — Trial — Instructions.

In an action for the death of a trainman against contractors, excavating along a railroad right of way for a double track, due to a collision between a freight train and earth and rock thrown on the track by a blast, the evidence showed that blasts of the eugine whistle, prior to the collision, were in response to signals from the conductor, and not to a flagging signal intended to warn the trainmen. Held, /that this warranted an instruction that if the flagman knew, or by the exercise of ordinary care ought to have known, that the blasts were not in response to his flagging, but to signals from the conductor, he was not justified in discontinuing flagging.

[Ed. Note.—For other, cases, see Negligence, C«nt. Dig. §§ 371-377; Dec. Dig. § 139.*]

5. Negligence (§ 134*)—Accidents to Trains —Blasting on Right of Way—Evidence.

Evidence held sufficient to justify a verdict for plaintiff in an action for the death of a trainman alleged to be due to the negligence of contractors in throwing earth and rock on the track while blasting on the right of way.

[Ed. Note.—For other cases, see Negligence, Dec. Dig. § 134.*]

6. Master and Servant (§ 93*)—Injuries to Servant—Delegation of Duties Imposed by Law.

A railroad company cannot escape liability for neglect of duties imposed on it by law in the interest of the safety of its servants and the public by delegation thereof to an independent contractor or otherwise.

[Ed. Note.—For other cases, see Master and. Servant, Cent. Dig. § 142; Dec. Dig. § 93.*]

7. Master and Servant (§ 103*)—Injuries to Servant—Delegation of Duty —Obstruction on Railroad.

A railroad company could not delegate to a contractor engaged in excavating along its right of way for the purpose of double tracking the duty owed to its employe's and the public to keep its track in safe condition free from obstructions, so as to avoid liability for the death of a trainman caused by failure of the contractors to give proper notice of a blast and a resulting obstruction.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*]

8. Torts (§ 22*)—Joint and Several Liability.

Joint tort-feasors are jointly and severally liable.

[Ed. Note.—For other cases, see Torts, Cent. Dig. S 29: Dec. Dig. § 22.*]

9. Contribution (§ 5*)^Joint Tort-feasors —Remedy Over.

No right of contribution exists among joint tort-feasors or remedy over by one against the other.

[Ed. Note.—For other cases, see Contribution, Cent. Dig. § 6; Dec. Dig. § 5.*]

10. Dismissal and Nonsuit (§ 26*)—Dismissal as to One Codefendant—Action for Tort.

Plaintiff in an action against joint tortfeasors may dismiss or discontinue as to one defendant without affecting his rights against the other.

[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 46; Dec. Dig. § 26.*]

Error to Circuit Court, Bedford County.

Separate actions by William J. Miller's administratrix against Walton, Witten & Graham, and by the same plaintiff against the Norfolk & Western Railway Company. From a judgment in favor of plaintiff in the first described case, defendant brings error, and, from a judgment in favor of defendant in the second described case, plaintiff brings error. Affirmed in the first case, and reversed in the second.

In first case:

Harrison & Long, for plaintiff in error.

Lee & Howard and Whitehead & Whitehead, for defendant in error.

In second case:

Lee & Howard and Whitehead & Whitehead, for plaintiff in error.

S. Griffin, for defendant in error.

WHITTLE, J. Though these cases are before us on different writs of error, they arose out of the same accident, were made the subject of one action, and were jointly submitted on appeal.

The object of the suit is to recover damages from the plaintiff in error, Walton, Wit-ten & Graham, and also from the defendant in error, the Norfolk & Western Railway Company, for the death of the plaintiff's intestate, William J. Miller, which is ascribed to the negligence of both defendants.

The jury found a verdict for the plaintiff against Walton, Witten & Graham, and assessed her damages at $7,500, but returned a verdict for the Norfolk & Western Railway Company; and judgment was rendered accordingly.

The first assignment of error by Walton, Witten & Graham is founded upon the court's action In overruling the demurrer to the declaration. On that assignment it is contended that the first and second counts of the declaration violate the rule of pleading which requires that the declaration in a joint action against tort-feasors must charge a joint tort; and, moreover, that, inasmuch as the third and fourth counts allege a joint tort, there is a misjoinder of counts. It is furthermore insisted that Walton, Witten & Graham did not owe plaintiff's intestate the same duty that was owing to him as anemployg from the Norfolk & Western Railway Company, and for that reason the defendants are not suable jointly.

The gravamen of the first and second counts, indeed of all the counts stated in varying form, is that the railway company owned, maintained, and operated a line of road extending, in part, between the cities of Roanoke and Lynchburg, in the state of Virginia; that with the view of widening its roadbed, for the purpose of double-tracking, the company employed Walton, Witten & Graham, a Arm of railroad contractors, to excavate and remove large quantities of earth and rock along its right of way, for the distance of one mile in a westerly direction from Montvale, a station on the railroad; that in the conduct of the work heavy blasts were frequently made by the contractors with dynamite and other high explosives, the effect of which was to cast large quantities of earth and rock upon the adjacent track; that it was the duty of the contractors to exercise reasonable care and diligence to warn employes of the railway company engaged in operating and running engines and trains of cars over its track in the vicinity of the work of such blasts, by the proper use of flags or torpedoes, or other reasonably practicable and adequate methods. A like duty is also imputed to the railway company; and it is alleged that, in consequence of the careless and negligent failure of the contractors and of the railway company to give such reasonable and timely notice, a freight train upon which plaintiff's intestate was employed as a locomotive engineer collided with earth and rock thrown upon the track by one of these blasts, and was killed.

It will be observed that the negligence attributed to both defendants is alleged to have produced a single indivisible injury; and, where such is the case, the rule is that they are in contemplation of law joint tortfeasors, though acting independently of each other.

The principle is thus stated in 1 Shear. & Red. on Neg. § 31: "If the injuries caused by the concurrent acts of two persons are plainly separable, so that the damage caused by each can be distinguished, each would be liable only for the damage which he caused; but, if this is not the case, all persons who contribute to the injury by their negligence are liable jointly and severally for the whole damage."

Again, at section 122, it is said: "If several persons are jointly bound to perform a duty, they are jointly and severally liable for omitting to perform or for performing it negligently. Persons who co-operate in an act directly causing injury are jointly and severally liable for its consequences, if they acted in concert, or united in causing a single injury, even though acting independently of each other."

Judge Cooley, in his work on Torts, states the doctrine as follows: "In respect to negli gent injuries there is considerable difference of opinion as to what constitutes joint liability. No comprehensive general rule can be formulated which will harmonize all the authorities. The authorities are, perhaps, not agreed beyond this: That, where two or more owe to another a common duty and by a common neglect of that duty such other person is injured, then there is a joint tort with joint liability. The weight of authority will, we think, support the more general proposition that, when the negligence of two or more persons concurs in producing a single Indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or eon-cert of action." 1 Cooley on Torts (3d Ed.) p. 246. To the same effect, see 15 Enc. PI. & Pr. 557, 558; McKay v. So. Bell Tel. Co., 111 Ala....