Wilson v. Southern Ry. Co

• Decision Date: 19 November 1908
• Parties: WILSON. v. SOUTHERN RY. CO.
• Court: Virginia Supreme Court

62 S.E. 972

108 Va. 822

WILSON.

v.SOUTHERN RY. CO.

Supreme Court of Appeals of Virginia.

Nov. 19, 1908.

1. Master and Servant (§ 177^*)—Injury to Servant—Fellow Servants.

The doctrine of fellow servants had no application to the injury of a railroad employé by the turning of a rail on a car while he and his co-servants were unloading a rail from the car in a method directed by the foreman; the reason for the turning of the rail not being proved.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. f 177.*]

2. Master and Servant (§ 97*)—Injury to Servant—Negligence.

Where the cause of the turning of a rail, by which plaintiff's foot was caught and injured as he was assisting in unloading a rail car, was not shown, and the evidence at most only showed a mistake in judgment of the foreman as to the manner of unloading the rails, the accident being such as could not have been expected to happen, negligence was not shown.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.*]

3. Negligence (§ 58*)—"Proximate Cause" —Elements.

The requisites of "proximate cause" are the doing or omitting an act which a person of ordinary prudence could foresee might naturally or probably produce the injury, and that such act or omission did produce it.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 71, 72; Dec. Dig. § 58.*

For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.]

4. Master and Servant (§ 97*)—Injury to Servant—Duty of Master.

A master is required to anticipate and guard against consequences injurious to his servant, that may be reasonably expected to occur, but he is not compelled to foresee and provide against that which reasonable and prudent men would not expect to happen.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.*]

Error to Circuit Court, Albemarle County.

Action by Jake Wilson against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

C. W. Allen and Geo. E. Walker, for plaintiff in error.

Perkins & Perkins, for defendant in error.

CARDWELL, J. This action was brought by plaintiff in error to recover of the defendant in error, the Southern Railway Company, damages for an injury alleged to have been sustained by the plaintiff as a laborer while in the employ of the defendant company.

At the trial the plaintiff and one other, Tom Brown, were alone introduced as witnesses on behalf of the plaintiff, and at the conclusion of the testimony given by these witnesses the defendant demurred to the evidence, whereupon the court rendered its judgment in favor of the defendant. The sole question, therefore, to be considered is whether or not the circuit court erred in said judgment.

Both witnesses say that they were employed by one Dudley on a "floating gang" or "extra force" for the duty of putting ballast under the track—surfacing the track—but just what was contemplated in the way of service in this employment is by no means made clearly to appear. It does, however, appear, upon the reading of the entire evidence, that this "floating gang'' or "extra force" on which the plaintiff and his witness Brown were employed were hired, not merely to do the regular work of a section force, but to do general section work between certain points on the main line of the defendant company; i. e., their business was, along with the gang under Dudley, consisting of from six to twelve or more men, to do whatever turned up on their section, and to help any of the other gangs that became short of the needed force.

Accordingly the plaintiff, along with the gang with which he was working, on the day of the injury of which he complains and for two weeks prior, without any complaint from him, was engaged in distributing steel rails along the defendant's main track, working in conjunction with another gang under one Murphy. There is nothing whatever in the evidence that would warrant the inference that he was being worked outside of his employment, or to show that he had any regular employment except that in the performance of which he was injured.

At the particular time of the accident to the plaintiff, this combined force under Dudley and Murphy had progressed in unloading a car of these 85 rails to the point where they had been taken and thrown out from the middle of the car down to its floor, leaving rails piled sloping up on either side of the car, and according to the witness Brown it was desirable to have the rails thus sloping up to the sides of the car, "in order to raise them up, so that we could get them off easy; would not have to lift them so high." At this moment the rails on the side of the car from which the men were to continue taking them up and throw them over the side of the car had a surface at the top of the width of four rails, or about ten inches, and just then Dudley, who was at one end of the car, said, "Men, tear down that pile, " which the men got ready to do, but Murphy, who was at the opposite end of the car from Dudley, gave the order: "Watch, men! Pull this top rail."...