Young v. West Va. C.

• Decision Date: 04 April 1896
• Court: West Virginia Supreme Court
• Parties: Young v. West Virginia C. & P. R'y Co.

42 W.Va. 112

Young

v.West Virginia C. & P. R'y Co.

Supreme Court of Appeals of West Virginia.

Submitted January 28, 1896

Decided April 4, 1896.

1. Master and Servant Assumption of Risk Fellow Servant.

A party who enters the service of a railroad company as a brakeman takes upon himself the natural and ordinary risks and perils incident to the performance of such services, including the perils arising from the carelessness and negligence of those who are in the same employment as fellow servants.

2. Master and Servant Fellow Servant.

If one brakeman on a freight train is injured by the carelessness and negligence of another brakeman upon the same train in the performance of his ordinary duties, they are fellow servants, and the railroad company is not liable for the injury thus occasioned.

3. Master and Servant Contributory Negligence Fellow Servant.

Where a brakeman, in attempting to withdraw the coupling pin and uncouple a car from the engine and tender, stands with one foot on the bumper belonging to each car, and, with his lantern in his left hand, leans forward, and reaches with his right hand to withdraw the coupling pin, which has already been withdrawn by a fellow brakeman, and the cars separating cause him to fall between the cars, and to be run over and injured, he must be regarded as negligent, and his negligence must be considered the proximate cause of his injury.

C. W. Dailey and L. D. Strader for plaintiff in error.

I. On variance, 23 W. Va. 618; 16 W. Va. 245, 263; 10 S.

E. R. 356; 12 S. E. R. 101, 1020; 28 Am. & Eng. Enc. Law, p. 59 & note 5; 15 W. Va 628.

II. Proximate cause. 17 W. Va. 190; Patterson's R'way Accident Law, 9-12; Baiiy, on Master & Servant, 425 427; Sher. & Red. on JSTeg. Vol. 1, § 26; Bishop on Non. Con. Law, § 457.

III. Fellow servants. S6 W. Va. 411; 34 W. Va. 273, 274; McKinney, on Fellow Servants, § 23 & page 55; 37 W. Ya. 502, 504; 21 S. E. R. 1028, 1029.

IV. On competency of testimony. 13 S. E. R, 459, 460; Rogers, Ex. Test. p. 13, § 5.

V. On contributory negligence. 27 W. Va. 145; 41 Am. &

Eng. R. R. Cas. 327-329.

VI. Assumption of risks. 41 W. Va. 293; p'ts 2, 3, 4 & 5 of syl.; 33 W. Va 108; 84 W. Va. 572.

VII. Rule as to minor servants, same as in case of adults. Beach. Con. Neg. § 357, 362.

VIII. Duty of servant to inform himself and act with eyes open. Beach, Con. Neg. § 369.

A. B. Parsons and Dayton & Dayton for defendant in error:

I. Demurrer to evidence. -8 W. Va. 515; 6 W. Ya. 508; 18

W. Ya. 299; 18 W. Va. 376; 30 W. Va. 27; 12 W. Va. 116; 18 W. Va. 579; 20 W. Va. 46; 21 W. Va. 709; 26 W. Va 345; 23 W. Va. 229; 26 W. Va. 455.

II. Conductor vice principal and not co-servant with brakeman.

28 W. Va. 610; 36 W. Va. 397; 112 IT. S. 377; 84 Va. 713; 86 Va. 165; 78 Va. 745; 81 Va. 71; 24 W. Va. 37; 112 U. S. 377, 390; 5 Sup. Ct. 184; 34 W. Va. 261; 39 W. Va. 86.

III. What is negligence. -28 W.Va. 570; 3 Lawson, R. & R. § 1215; 2 Thomp. BTeg. § 1239; 61 Pa. St. 59; 17 W.Va. 190.

IV. Master's duty and liability to his servants. 44 Mo. 488; 28 W. Va. 617; 69 111. 461; 10 Am. R. & C. Rep. 264; 4 Am. R. k C. Rep. 1; 24 At. Rep. 134; 56 Mo. App. 630; 4 Am. R, & C. Rep. 239; 8 Am. R. & C. Rep. 728; 126 IS". Y. 544; 84 Ga. 420; 4 Am. R, k C. Rep. 385; 21 S. E. Rep. 342, syl. 5; 83 Mich. 281; 53 N. Y. 549; 39 Fed. Rep. 174; 84 Va. 679, 713; 78 Va. 645, 745; 19 S. E. Rep. 261, 652; 88 Ga. 16; 92 Ga, 95; 111 K C. 482; 31 Kan. 586; 87 Ga. 631; 88 Va. 648, 971; 88 Ga. 19; 30 W. Va. 798; 37 W. Va. 606; 38 W. Va 273, 456, 570; 27 W. Va. 145.

V. Release no bar. 2 Q. B. (1894) 65; 12 S. E. Rep. 600;

160 Mass. 447; 57 N. W. Rep. 425; 51 Iowa, 68; 109 111. 120; 127 Mass. 86; 18 Kans. 58; 50 1ST. Y. 670; 28 N. E.

Rep. 593; 78 Tex. 314; 16 So. Rep. 379; 40 Pac. Rep.

609; 83 Wis. 527. VI. Railroad experts could testify. Redfield R'y, Yol 1, top

page 599 (6th Ed.) Pt, vi, sec. vi, S. 134; 17 S. E. Rep.

732; 36 W. Ya. 212; 35 W. Ya. 500; 87 Ga. 631. VII. Motion to exclude evidence properly overruled. 38 W.

Va. 456, 645; 36 W. Ya. 96; 35 W. Ya. 389; 30 W. Ya. 228; 8 W. Ya. 568; 25 W. Ya. 692; 28 W. Ya. 333; 30 W. Ya. 27; 139 IT. S. 551. VIII. Damages not excessive. -39 W. Va. 86; 29 W. Va. 777; 16 W. Va. 297; 21 W. Va 530; Deering, Neg. § 424; 18 111. 418; 31 Kans. 197; 64 Barb. 439; 51 Ga. 582; 2 Am. & Eng. R. Cas. 70; 5 Id. 264; 34 W. Va. 232; 19 W. Va. 850; 76 X. Y. 549; 102 N. Y. 280; 11 W. Va. 17.

English, Judge:

On the 8th day of December, 1891, Charles W. Young brought an action of trespass on the case in the Circuit Court of Tucker county against the West Virginia Central & Pittsburg Railway Company, claiming damages to the amount of thirty thousand dollars on account of personal injuries received by him while acting as brakeman on one of defendant's freight trains. The defendant demurred to the plaintiff's declaration, and the same was overruled by the court, The plea of not guilty was interposed, and issue was thereon joined, and on the 10th day of March, 1894, the defendant tendered and asked leave to file four special pleas in writing, numbered 1, 2, 3, and 4, which were objected to, and the objections overruled. The pleas were filed, and the plaintiff* excepted, and thereupon the plaintiff replied generally to said four pleas, and also tendered two special replications, numbered 1 and 2, to said four pleas, to the filing of which the defendant objected. The court overruled the objection, and allowed said special replications to be filed, and the defendant excepted. The defendant rejoined generally to said special replication No. 2, and asked leave to file a special rejoinder in writing to said special replication No. 1, to which the plaintiff'objected, and the objection was sustained, and the defendant excepted, and tendered its bill of exceptions No. 1, setting forth said special rejoinder, which was signed, sealed, and made a part of the record. Said special pleas Nos. 1, 2, 3 and 4, and said special replies Nos. 1 and 2, read as follows:

"Defendant's Special Plea No. 1. For further plea in this behalf the defendant says that the plaintiff'ought not to have and maintain this, his action, because, as the defendant avers, that on the 6th day of June, 1891, the said plaintiff received the sum of $239.17 on account of the injuries of which he complains in this action, $164.17 of which was paid to him from what is known as the ' West Virginia Central Relief Fund, ' which is a fund raised for the benefit of the employes of the defendant company injured while in the discharge of their duties as such employes, to which fund said defendant was a large contributor, and $75 of which amount was paid directly by the defendant; and on the day aforesaid the plaintiff, in writing, acknowledged the receipt of said sums of money in consideration of the payment of the same to him, released the said defendant from all claims and demands for damages, indemnity, or other form of compensation on account of the injuries complained of in his declaration in this action, and waived any and all claims he might have or be supposed to have then or thereafter as growing out of such injuries; and this the said defendant company is ready to vertify."

"Defendant's Special Plea No. 2. For further plea in this behalf the defendant says the plaintiff ought not to have and maintain this, his action, because the defendant avers that on the 6th day of June, 1891, the said plaintiff received the sum of $239.17 on account of the injuries of which he complains in this action from the said defendant company, and on the date aforesaid the plaintiff, in writing, acknowledged the receipt of said sum of money, and in consideration of the payment of the same to him released the said defendant from all claims and demands for damages, indemnity, or other form of compensation on account of the injuries complained of in this declaration in this action, and waived any and all claims he might have or be supposed to have then or thereafter against the said defendant as grow- ing oat of said injuries, and this the said defendant company is ready to verify."

''Defendant's Special Plea No. 3. For further plea in this behalf the defendant says the plaintiff ought not to have and maintain this, his action, because the defendant avers that on the 6th day of June, 1891, the said plaintiff received the sum of $239.17 on account of the injuries of which he complains in this actio::}, which sum of money was paid to him from what is known as the'West Virginia Central Relief Fund, ' which is raised for the benefit of the employes of the defendant company inj ured while in the discharge of their duties as such employes; to which fund the said defendant was a large contributor, which amount was paid for and on behalf of the defendant company to the said plaintiff; and on the day aforesaid the plaintiff, in writing, acknowledged the receipt of said sum of money, and in consideration of the payment of the same to him released the said defendant from all claims and demands for damages, indemnity, or other form of compensation on account of the injuries complained of in his declaration in this action, and waived any and all claims he might have or be supposed to have then or thereafter as growing out of such injuries. This the said defendant company is ready to verify."

"Defendant's Special Plea ISro. 4. For further plea in this behalf the defendant says that the plaintiff ought not to have and maintain this, his action, because, as the defendant avers, on the 6th day of June, 1891, the said plaintiff received the sum of $239.17 on account of the injuries of which he complains in this action, part of which was paid to him from what is known as the 'West Virginia Central Relief Fund, ' which is a fund raised for the benefit of the employes of the defendant company injured while in the discharge of their duties as such employes, to which fund the said defendant was a large contributor, and part of which amount was paid in part directly by said de...