Webb v. Chesapeake & 0. Ry. Co, (No. 6088.)

• Court: Supreme Court of West Virginia
• Writing for the Court: WOODS
• Citation: 144 S.E. 100
• Decision Date: 15 May 1928
• Docket Number: (No. 6088.)
• Parties: WEBB. v. CHESAPEAKE & 0. RY. CO.

144 S.E. 100

WEBB.
v.
CHESAPEAKE & 0. RY. CO.

(No. 6088.)

Supreme Court of Appeals of West Virginia.

May 15, 1928.

Rehearing Denied July 10, 1928.

(Syllabus by the Court.)

Appeal from Circuit Court, Raleigh County.

Action by Kelly Webb against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Fitzpatrick, Brown & Davis, and C W. Strickling, all of Huntington, for plaintiff in error.

C. M. Ward and D. D. Ashworth, both of Beckley, for defendant in error.

WOODS, Judge. [1] This action is brought under the Federal Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665), by Kelly Webb, for an injury sustained by him while in the employ of the defendant railway company by reason of the alleged negligence of a fellow employee. Judgment for the plaintiff for $10,000, and defendant brings error.

On the morning of September 1, 1925, while the section crew was engaged in track repair and maintenance work near Dorthy, Raleigh county, the foreman called plaintiff, a member of said crew, from the place where he and Massey were tamping ties, and conducted him a short distance east to the point of the accident for the purpose of having a certain tie removed and replaced—the tie in question being the second east of the one which Richmond, another employee, was then engaged in tamping. The railroad at this point was elevated some ten or twelve inches above the surface of the ground, and, at the time of the injury, plaintiff was standing on the ground on the south side of the track, facing north. When plaintiff began shoveling the ballast away from the west edge of the head

[144 S.E. 101]

of the tie—that is, from that portion which extends beyond the rails—Richmond was still tamping the quarter, the portion of the tie between the rails. Richmond was standing between the rails just west of the tie he was tamping, and a little more than four feet west of plaintiff. Plaintiff had removed possibly three shovelfuls of ballast from the head of his tie, when Richmond, who upon finishing tamping the quarter stepped over the rail for the purpose of tamping the head of the tie on the side plaintiff was working, and without looking up raised his pick and brought the tamping point of the same down on plaintiff's head, thereby felling the latter to the ground, and rendering him unconscious for a few minutes. Plaintiff was directed to go to the doctor some two miles distant to have his wound dressed. Prior to the injury he was strong and healthy and able to perform the hardest kind of labor for the defendant company. Since the accident he has lost weight, and has continuously suffered with headache and dizziness, and has been unable to perform any labor. It is admitted on the record that the defendant railroad is engaged in interstate commerce.

The first point stressed is that there was no evidence of negligence on the part of the railway company or any of its employees or agents. Both Webb and Richmond testified as to their relative positions and movements prior to and at the time of the accident. Webb showed where Richmond was working at the time he passed around him and began to remove the ballast from the head of the tie, which he had been instructed to remove. He further testified that the shoveling of the blue limestone ballast made noise enough to have warned Richmond of his presence. Richmond explains that, when he had finished tamping the quarter, he stepped over (outside) the rail, and, without looking, began to swing the pick to tamp the head, and, in doing so, that he struck the plaintiff on the head on the first or second lick. The employee may assume that the employer, or his agents or servants, have exercised proper care with respect to his safety. Such is the rule laid down in Chicago, Rock Island & Pac. Ry. Co. v. Ward, 252 V. S. 18, 40 S. Ct. 275. 64 L. Ed. 430, and C. & O. Ry. Co. v. De Atley 241 U. S. 310, 36 S. Ct. 564, 60 E. Ed. 1016. The evidence here was sufficient to submit the question...