Wise Terminal Co v. Mccormick

• Decision Date: 14 September 1905
• Parties: WISE TERMINAL CO. v. McCORMICK.
• Court: Virginia Supreme Court

104 Va. 400

51 S.E. 731

WISE TERMINAL CO.

v.McCORMICK.

Supreme Court of Appeals of Virginia.

Sept. 14, 1905.

1. Master and Servant—Injuries to Servant—Railroads—Negligence.

Where plaintiff, a brakeman in defendant's employ, was injured while attempting to board defendant's sole locomotive at a time when plaintiff was off duty, and when there was no reason to suppose that any one was in the vicinity or would attempt to get upon the engine, defendant was not negligent in leaving an oil can used by the engine hostler on the footboard of the engine, or in not having a rule forbidding such obstruction.

2. Same—Absence of Lights—Proximate Cause.

Where, in an action for injuries to a servant while attempting to board an engine, plaintiff testified that he both saw and heard the engine coming toward him prior to the accident, defendant was not negligent in failing to have marking lights on the rear of the tender.

3. Evidence—Speed—Expert Testimony.

The speed of a train and within what distance it could be stopped are questions on which expert testimony cannot be introduced, unless based on the operation of cars or engines of similar construction and equipment under like circumstances.

4. Master and Servant—Injuries to Servant — Railroads — Contributory Negligence.

Where plaintiff, without necessity, after the termination of his service for the day, went to defendant's railroad yard to give the watchman a coach key, and for that purpose stood in the middle of the track when he knew the engine was approaching him backwards, and attempted to get on the footboard in the rear, when he slipped and was injured, he was guilty of contributory negligence, precluding a recovery,

5. Same—Discovered Peril.

In an action for injuries to a brakeman while attempting to board the tender of an engine approaching him at night, evidence held insufficient to entitle plaintiff to recover on the theory that the man in charge of the engine was negligent in failing to stop the same after he discovered plaintiff's danger.

Error to Circuit Court, Wise County.

Action by W. B. McCormick against the Wise Terminal Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Ayers & Fulton and Bullitt & Kelly, for plaintiff in error.

William H. Werth, for defendant in error.

CARDWELL, J. The defendant in error, W. B. McCormick, brought this action and recovered in the circuit court of Wise county a verdict and judgment against the plaintiff in error, Wise Terminal Company, which was the defendant in the court below, for $5,000 as damages for personal injuries alleged to have been inflicted upon him by the negligence of the defendant company.

In the view taken by this court, there was a total failure on the part of the plaintiff to trace actionable negligence to the defendant company, and in no aspect of the case was he entitled to a verdict. Therefore it is unnecessary to notice in detail the numerous assignments of error, other than the refusal of the trial court to set aside the verdict on the ground that it was contrary to the law and the evidence.

The Wise Terminal Company operates a line of railroad about six miles in length, extending from the town of Glamorgan, in Wise county, to the town of Norton, in the same county. Tbe business conducted by the company, at the time of the injuries received by the plaintiff, consisted of two passenger trains between the two points named, one in the morning, and the other in the evening, and the carrying of freight between the same points.

In carrying on this business, the defendant company found it necessary to purchase and use only one engine and one passenger car; the freight cars being furnished by connecting roads. The engine used, though secondhand, was duly inspected before it was purchased by the defendant company by competent inspectors, and pronounced reasonably safe and suitable for the work required of it—in fact, according to the undisputed evidence in the case, was more desirable and much safer on the new roadbed which the defendant company was operating than a new engine would have been. The defendant company employéd competent men to manage and conduct its business, and among others of its employés was the plaintiff, McCormick, who was a brakeman, well versed in railroad rules, who usually performed his duties reasonably well, but had fallen into the habit of drinking ardent spirits to excess at times. His duties were those of an ordinary brake-man, and to keep one of the two keys to the passenger coach from the time he went on duty at 7 o'clock a. m. till about 7:30 p. m., when he was to lock the passenger coach and deliver the key to another employé, Taylor, and thereupon his (McCormick's) duties and employment ceased for the day, and it be came the duty of Taylor, as the night watchman (or "hostler"), to take charge of the engine and passenger coach and keep them in charge during the night. He (Taylor) was also to clean, oil, sand, water, and coal the engine, clean up the passenger coach, and have them ready for the first passenger run from Glamorgan to Norton the next morning. No one besides Taylor had anything to do with the engine or passenger coach after the last or night passenger run from Norton to Glamorgan was completed; the engine and passenger coach remaining at Glamorgan for the night in the exclusive custody and control of Taylor, with no reason whatever for him to expect any one to come about them. There was no regular roundhouse for the protection and care of this one engine, and in the performance of his duties in cleaning said engine and getting the same ready for duty on the road early next morning it became necessary to use kerosene oil, and for this purpose there was kept in the passenger coach a five-gallon can of such oil, which Taylor, the night watchman, would use and then return to its place in the passenger coach. The road being new and the grounds muddy, it frequently became necessary for the night watchman in the performance of his duties to detach the engine and take it to a certain switch in the yard, where, on account of the increased width of the level space at the switch, he could stand the engine and more easily and with less contact with the mud get around it and do the necessary cleaning and other work upon it. After the necessary cleaning and oiling was done the night watchman would take the engine back down the main track, respectively, to the places where he could sand, coal, and oil it and then attach it to the passenger coach, to be followed by sweeping out the passenger coach and otherwise putting it in proper condition for the first passenger run, leaving Glamorgan about 7 o'clock the next morning; the night watchman remaining in charge until the next morning, when he delivered the engine and coach to the crew which made the runs between Glamorgan and Norton, said crew including the plaintiff, McCormick, who had no duties or business on the engine or coach from about 7:30 o'clock p.m. the previous evening until 7 o'clock the next morning. When the night watchman would get his engine clean and start it back for sand, water, and coal, and to be attached to the passenger coach, he would of necessity place the oil can on a certain step affixed to the rear end of the tender of the engine and extending entirely across the tender, which was, according to the evidence, the only place where the oil can could be safely placed while carrying it back to its final destination in the passenger coach, and it was the custom to so carry it from the passenger coach to the point where the engine was cleaned andoiled, and back to the passenger coach when the work of cleaning and oiling the engine had been done. Of the two keys to the passenger coach mentioned, the watchman had one, and it was therefore no impediment to him in the discharge of his duties, if McCormick, the plaintiff, did not deliver the other key to him when he went off duty until the next morning; hence there was no actual necessity for McCormick, when he went off duty, to give the key he held to the night watchman, and the only reasons for his doing so were (1) that he would be observing the rules, and (2) that there would be less risk of some outsider getting hold of the key, if given to the night watchman, who remained on duty and awake all night. There were no lights on the rear or tender of the engine, and none were necessary, as no one was expected or allowed to attempt to get on the engine while it was off duty and in the charge of the night watchman. As there was but one engine to move in the yard, there was no danger of a collision by reason of the absence of lights or "markers" on it, and therefore the reason why standard roads with a number of engines and trains constantly moving have these lights or "markers" did not apply. The step that ran across the rear end of the tender, and on which the oil can was usually placed, as stated, was a board about 9 inches wide, and about 1 1/2 inches thick, and about 17 or 18 inches high from the track, and some 8 or 9 inches higher than the usual height of such steps. Just why this was so the evidence does not disclose, but it does appear that the danger in attempting to board the engine by getting on said step would be far greater than if it had been of the ordinary height, 8 or 9 inches, a fact which, by reason of his experience, was well known to McCormick. The engine while in use on the road was not fully equipped with an air brake, though the tender was so equipped, and from this the air could be made to operate and control the other parts of the train, and, as no great speed was required or attained in the handling of the defendant company's trains, this equipment was all that was necessary, but after the day's work was over even the air brake on the tender was not required nor used, and the air valve was cut off and the engine controlled in the few movements it made on the yard during the night by the steam brake and...