Wood's Adm'x v. Southern Ry. Co.*

• Decision Date: 07 December 1905
• Citation: 104 Va. 650,52 S.E. 371
• Parties: WOOD'S ADM'X. v. SOUTHERN RY. CO.*
• Court: Virginia Supreme Court

52 S.E. 371

104 Va. 650

WOOD'S ADM'X.

v.SOUTHERN RY. CO.^*

Supreme Court of Appeals of Virginia.

Dec. 7, 1905.

1. Master and Servant—Injuries to Servant—Duties of Master—Safe Appliances.

Where a handhold on the manhole of an engine tender, while primarily used to raise the manhole cover, is also commonly used, without objection from the railroad, by brake-men and others as the most convenient and safe way to assist them in getting on and off the tender, the railroad is bound to exercise ordinary care to see that such handhold is in a reasonably safe condition for the use to which the brakemen and other employes put it.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 173, 174.]

2. Same—Actions—Questions for Jury.

In an action against a railroad for the death of a brakeman, evidence held sufficient to require the submission to the jury of the question whether the death of the brakoman was not to be attributed to the negligence of the railroad in failing to keep a handhold on the tender on which the brakeman was riding in a reasonably safe condition.

3. Evidence — Weight and Sufficiency — Preponderance of Proof.

Plaintiff in an action for personal injuries is not required to prove his case beyond a reasonable doubt, but all that is required to make out a prima facie case is to make it appear more probable that the injury was the proximate result of defendant's negligence than of anything else.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 207.]

4. Master and Servant—Injuries to Servant — Contributory Negligence — Sufficiency of Evidence.

In an action against a railroad for the death of a brakeman, alleged to have been caused by the giving way of a manhole cover, to the handhold on which the brakeman was clinging while getting off the tender, evidence held to authorize a finding that the brakeman was not guilty of contributory negligence in making use of the handhold while getting off the tender.

Error to Circuit Court, Amherst County.

Action by Anna P. Wood, as administratrix of J. Buckner Wood, deceased, against the Southern Railway Company. There was a judgment in favor of defendant, and plaintiff brings error. Reversed.

Strode & Tucker and Caskie & Coleman, for plaintiff in error.

Horsley & Kemp, for defendant in error.

BUCHANAN, J. This action was brought by the personal representative of J. Buckner Wood, deceased, to recover damages for the death of his decedent, caused, as alleged, by the negligence of the Southern Railway Company.

Upon the trial of the cause, the defendant company's demurrer to the evidence was sustained, and judgment rendered in its favor. To that judgment this writ of error was awarded.

There was evidence tending to prove that about 10 o'clock on the night of February 7, 1904, one of the defendant company's freight trains from Alexandria arrived at Monroe, a station on the defendant's road in Amherst county. The train was to be placed on a siding there and the engine taken to the roundhouse. The front brakeman on the train not being acquainted with the switches at the station, the plaintiff's decedent, who was a yard brakeman, was ordered by the yardmaster to assist in "putting away" the train, and was engaged in that service when he lost his life.

The train came in from the north on the main track, and after passing the depot was switched to another track, where the engine and tender were cut loose from the cars. The engine and tender proceeded over another switch to the main line, and were backed down that track with the intention of getting on the "lead" track through another switch, so as to get to the roundhouse. As the train went south over the main line, and before the engine and tender were cut loose, the deceased lit a "fusee, " which makes a flaming red light and burns about 10 minutes, and stuck it in the ground to give warning to an approaching train from the south. After the engine and tender had been cut loose, and as they were backed north on their way to the roundhouse, the deceased picked up the lighted fusee, and with his lantern got on top of the tender of the engine and sat on its rear end, holding the fusee in his hand to signal the engineman, and to give warning to the train approaching from the south and another which was expected from the north. The position of the deceased was a proper one for the duties he had to perform.

When the engine and tender reached the switch over which they had to pass to reach the "lead" track, it was the duty of the deceased to throw or change the switch. As the engine and tender approached the switch, and were within 100 or 125 yards of it, running at the rate of about 12 miles an hour, the deceased was seen sitting on the "manhole" on the rear end of the tender by the engineman, as he turned to shut off the steam and slow down his engine so as to go in on the switch. There was some slight hitch in reversing the lever and slowing down the engine, and when the engineman again looked in the direction his engine was backing he did not see the plaintiff's intestate, but took "it for granted, " as he testified, "that he had gotten down and later would throw the switch." As soon as the engine stopped the attention of the engineer was attracted by the action...