Wash.-southern Ry. Co v. Cheshire

• Decision Date: 10 June 1909
• Parties: WASHINGTON-SOUTHERN RY. CO. v. CHESHIRE.
• Court: Virginia Supreme Court

65 S.E. 27

109 Va. 741

WASHINGTON-SOUTHERN RY. CO.

v.CHESHIRE.

Supreme Court of Appeals of Virginia.

June 10, 1909.

1. Appeal and Error (§ 843^*)—Review.

Where a case was tried upon an amended declaration, an assignment of error concerning questions raised by a demurrer to the original declaration need not be considered.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 843.*]

2. Master and Servant (§§ 293, 296*)—Injuries to Servant—Instructions—Evidence.

In an action by a servant for injuries from a turntable operated by compressed air, evidence that, though there was a safe method unknown to the servant of shutting off the air to stop the table when the lever usually used for the purpose failed to work, the foreman required the servant to shut it off by going under the table while it was in motion, which resulted in his injury, warranted instructions that where there are two ways for a servant to perform his work, one safe and one unsafe, he must adopt the safe way, if he knows of it or might know of it in the exercise of ordinary care, that it is the master's duty to inform the servant of the safe way, and if the servant was not informed and did not know and could not in the exercise of ordinary care have ascertained it, and was doing the work assigned him in the only way known to him, which was not so obviously dangerous that a reasonably prudent man would not have undertaken it under the direction of the foreman, he could recover for hisprinted brief of the points intended to be insisted on by a party to a writ of error.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 362.*]

9. Appeal and Error (§ 362^2-*)—Proceedings for Transfer—Petition for Writ of Error—Nature.

A petition for a writ of error is in the nature of a pleading, and must state clearly and distinctly the errors relied on to reverse the judgment.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1960, 1961; Dec. Dig. § 362.*]

10. Master and Servant (§ 276*)—Injuries to Servant—Actions—Evidence.

In an injury action by a servant, evidence held sufficient to sustain a judgment for plaintiff.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 276.*]

Error to Circuit Court of Alexandria.

Personal injury action by Robert M. Cheshire against the Washington-Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Francis L. Smith, for plaintiff in error.

Norton & Boothe, for defendant in error.

WHITTLE, J. It is apparent that this case was tried upon the amended declaration to which there was no demurrer, and which states a good cause of action. Therefore we need not notice the first assignment of error which concerns questions raised by the demurrer to the original declaration. Virginia Cedar Works v. Dalea (Va.) 64 S. E. 41.

The writ of error brings under review the judgment in behalf of Robert M. Cheshire, the defendant in error, against the Washington-Southern Railway Company, the plaintiff in error, in an action to recover damages for personal injuries sustained by him while in the service of the railway company.

The essential facts of the case about which there can be no dispute—at least, from the standpoint of a demurrer to the evidence— are as follows: The plaintiff was employed by the defendant as night operator of its turntable and switch at the freightyards near the city of Alexandria. He was directed to report for duty to Hammersly, the night roundhouse foreman, and was placed under his control for instructions and orders. The motive power of the turntable was compressed air, and, when the plaintiff had been oferating it for a few nights, he attempted to stop the table at one of the engine stalls to bring out the engine, but the lever "hung up" and the machine continued to revolve, whereupon Hammersly, the foreman, jumped down into the pit over which the turntable revolved, and stopped it. Several days later the table again failed to respond to the lever, and Hammersly a second time went in the pit and cut off the air. On the last occasion he ordered the plaintiff to get into the pit with him, and instructed him how to stop thetable from that position, at the same time remarking: "'If you cannot do it, I will get somebody that will;' * * * that he was tired having to come out there every time the table ran off." Hammersly testified that he stopped the table three times for the plaintiff.

Shortly after the last occurrence the plaintiff was again unsuccessful in the attempt to control the table with the lever, and jumped into the pit for that purpose, but slipped and was caught in the machinery, receiving the injuries of which he complains.

He had no notice or knowledge of any way of stopping the turntable other than that pointed out to him by Hammersly. It appeared, however, that between the table and roundhouse. there was a stop-cock, by means of which the turntable could be controlled without risk or danger to the operator. Hammersly in his testimony admitted that he had never shown the plaintiff any other way to stop the machine when the lever failed him, except to jump into the pit and cut off the air. He also testified that, after the accident, he saw his mistake, and showed his men the valve near the roundhouse, and directed them not to go into the pit any more while the turntable was in motion.

The first assignment of error which demands our attention questions the correctness of instructions 2 and 3, given at the instance of the plaintiff, and objects to instruction 4 on the ground that there was no evidence to support it.

By instruction 2 the court told the jury that where there are two ways for a servant to perform his work, the one safe and the other unsafe, it is his duty to adopt the safe way, if he knows of it, or in the exercise of ordinary care might know of it; also, that it is the duty of the master to inform the servant of the safe way, and, if they believe from the evidence that the plaintiff was not so informed and did not know, and could not have ascertained, the safe way of stopping the turntable by means of the stop-cock by the exercise...