Webb v. Chesapeake & O. Ry. Co.

Citation144 S.E. 100,105 W.Va. 555
Decision Date15 May 1928
Docket Number6088.
PartiesWEBB v. CHESAPEAKE & O. RY. CO.
CourtWest Virginia Supreme Court

Submitted May 8, 1928.

Rehearing Denied July 10, 1928.

Syllabus by the Court.

In an action under the Federal Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665), the defense of assumed risk is inapplicable when the injury arises from a single act of negligence of a fellow employee, creating a sudden emergency without warning to the plaintiff or opportunity to judge of the resulting danger.

The testimony of expert witnesses on an issue is not exclusive and does not necessarily destroy the force or credibility of other testimony. The jury has a right to weigh the testimony of all witnesses, experts and otherwise; and the same rule applies as to the weight and credibility of such testimony.

In personal injury cases there is no rule of law fixing the measure of damages, but that is a matter to be left to the sound discretion and judgment of an impartial jury, whose verdict will not be disturbed unless it appears that they have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case.

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.

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 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 & P. Ry. Co. v. Ward, 252 U.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 L.Ed. 1016. The evidence here was sufficient to submit the question of negligence to the jury.

But was the risk assumed by the employee? According to the federal decisions, in cases other than for violation of the federal statutes enacted for the safety of employees, the defense of assumption of risk shall have its former effect as a complete bar to an action under the statutes. Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. The instant case therefore falls within the class of cases wherein the assumption of risk is a bar. Judge Miller, in Kirk v. Virginian Railway Co., 105 W.Va. 335, 142 S.E. 435, said:

"But though not a favored doctrine, *** an employee does assume the extraordinary dangers and hazards which are apparent to him and which he sees and appreciates, but the burden of showing which is upon the railway company, and generally the fact of such knowledge and appreciation on the part of the employee is a question of fact for the jury to determine. Harness v. B. & O. Ry. Co., 86 W.Va. 284, 103 S.E. 866, syl. 8."

In the Harness Case, Judge Lynch says that the modified rule is applicable only when the employee knows of the extraordinary risks, or it is so obvious that a reasonable person would have appreciated it. Can we say in this case as a matter of law that Webb, bent on his duty of removing a tie to which work his foreman had assigned him, was negligent in assuming that the other trackmen, particularly Richmond, would perform their duty toward him, and saw or should have seen and appreciated the fact that Richmond was not doing so, and thereby assumed the risk of continuing to perform the duty imposed upon him by the foreman? Richmond was aware of the fact that others were working along the track, and must have known of Webb's presence. While Richmond's position within the rails, and his manner of work, if properly handled, would not be dangerous to Webb, who was shoveling from a position outside of the rails, yet his manner of swinging the pick after moving in tamping the head and under the rail would be extremely dangerous. Webb began to work at his task, knowing that, as long as Richmond was working inside the rails, he would be comparatively safe from injury. Proper regard for his safety would have led him to assume a different position had Richmond been tamping at the head. Richmond owed Webb, as well as the other employees, a duty on shifting his position of first ascertaining whether or not his new position was too close to them for safety.

The foreman supports plaintiff's claim that Richmond was not within striking distance of him immediately before he assumed the position from which the plaintiff was struck. The foreman says he put Webb at work "cleaning out a tie bed" and that "Richmond was five ties down-four ties, with a tie between that Kelly was cleaning out." This was the position of...

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