R. & D. R. R. v. Norment , 84 Va. 167 ( 1887 )

Richardson, J.,

(after stating the case), delivered the opinion of the court.

The defendant, the plaintiff in error here, excepted to the instruction given at the instance of the plaintiff, which was the plaintiff's instruction, Ro. 2, but assigned no defect therein, .and could not have done so, as it was plainly proper and upheld by reason and authority.

As to the instructions asked for by the defendant and refused by the court, the first two are covered by those given by the court, which in substance are the same, only more directly and strongly expressed; so that, whether they were right or wrong, it is not necessary to consider, as it is certain that the defendant was not aggrieved by the court’s substitution. The defendant’s first instruction tells the jury that, if they believe certain facts from the evidence, then the conductor and the engineer of the shifting engine, by whose acts the plaintiff was injured, and the plaintiff were co-employees, and that if the jury believe from the evidence that the plaintiff sustained the injury complained of by reason of the negligence of said conductor and engineer, he cannot recover unless the jury believe from the evidence that the said conductor and engineer, or either of them, were incompetent to discharge properly the duties of the positions they respectively occupied, and that the defendant had knowledge of such incompetency.

Yet the first instruction given by the court assumes that the conductor and the engineer were co-employees with the plaintiff, and tells the jury down right that the defendant is not responsible for injuries resulting to the, plaintiff, from their negligence, unless, &c.

The third instruction of the defendant is to the effect that an employer is released from all liability for negligence, although aware of its continued existence, if the injured employee continued to work for him after he knew of the negligent and dangerous manner in which the employer allowed his business to be conducted. The court did not err in rejecting this instruction. It was palpably improper. It is sanctioned neither by reason, justice, nor law. The usual and legal duty of every employer is to provide all means and appliances reasonably necessary for the safety of those in his employment. It is a cruel, an inhuman doctrine that the employer, though he is aware that his own neglect to furnish the proper safeguards for the lives and limbs of those in his employment, puts them in constant hazard of injury, is not to be held accountable to those employees who, serving him under such circumstances are injured by his negligent acts and omissions, if the injured parties, after themselves becoming cognizant of the peril occasioned by their employer’s negligent way of conducting his business, continue in his employment and receive his pay, though they may be virtually compelled to remain by the stern necessity of earning the daily food essential to keep away starvation itself.

The second instruction of the court correctly propounds the law of the case. It is sustained by an unbroken line of authorities, in none of which is it more clearly expressed than B. & O. R. R. Co. v. McKenzie, 81 Va., 71, where Lewis P. says: “ The master, to be exempt from liability, must himself have been free from negligence. He is bound to use ordinary care in supplying and maintaining proper instrumentalities for the performance of the work required, and generally to provide for the safety of the servant in the course of the employment, to the best of his skill and judgment. And if he fail in the performance of his duty in this particular, he is liable to the servant as he would be to a stranger,” citing Hough v. Railway Co., 100 U. S., 213; Wabash Railway Co. v. McDaniels, 107 Id., 454; 2d Thompson on Neg., 985-6. "We are, therefore, of opinion that said circuit court committed no error in respect of its rulings as to said instructions of which the plaintiff in error can complain.

It is also assigned for error that the circuit court overruled the defendant’s motion to set aside the verdict of the jury and award a new trial, on the ground that the verdict was contrary to the law and the evidence.

The evidence as certified discloses the following facts: S. E. ETorment, the defendant in error, was, on the 2d of March, 1885, employed by the defendant company, the plaintiff in error here, at its Eichmond depot yard as an “ overhauler,” that is, to assist in fixing up cars needing repairs. Two men called inspectors go over the cars ahead of the overhaulers and ■see what is to be done to them. They set down on a piece of paper the number of the car and what is to be done to it, and hang the paper up on file in what is called “the overhauler’s shanty,” and the men who do the overhauling come into the shanty, examine the paper, learn what is required of them, and at once proceed to do it. On the day he received the injury in question, ETorment was required to put a drawbar spring into the end of a certain car which stood on “the branch track.” He undertook to perform this duty, aided by •one Garrett, another overhauler, the job requiring two. The car thus to be fixed was one of the intermediate ones of a line o’f cars standing on said track in said yard. One car was in front and several behind the damaged car to be overhauled. To do the job it was necessary for Ebrment to get under the damaged car and for Garrett to get between it and the one in front of it. Having so placed themselves, they removed the old spring and began to put in the new one. The cross-head ■fitted tight and required both men to fix it—one to drive it up and the other to head it. Ebrment held it to place the spindle in the seat, and Garrett proceeded to drive it up. Whilst they were so situated the company caused another car to be shifted on to the branch track and driven against the car which stood in front of the one they were at work on. That caused the car in front of the damaged car to be driven against the latter car, and caused the hand of Ebrment. that held the spindle to be caught between the drawbar and the spring seat and to be greatly mashed. The injury caused the loss of the first finger and the first joint of the second. The injury also caused the hand to rise, and it had to he lanced. The result was that the whole hand was rendered permanently stiff' and disabled. The company owned an engine called the “shifting engine,” used to shift cars from one track to another and to and from the Manchester yard. In the performance of these duties the shifting engine was generally employed all day. It was run by an engineer who did the shifting according to orders given him by the shifting conductor. Eothing was done except by the orders of this conductor. The car which was shifted upon the branch track where Eorment was at work, was ordered to be so shifted by the conductor. There was no repair track in this yard. A repair track is one upon which cars needing repairs are put, and upon which it is not customary for the shifting engine to come without notice to the overhaulers at work there. With such a track overhaulers can do their work without being subjected to unnecessary danger. The company knew of the necessity for such a track, because they have such a track in their Manchester yard. The conppany had adopted and provided up to the time of this injury no means whatever whereby overhaulers could be protected when at work upon a car. Even when complaint was made of the want of protection they were told to look out for themselves. In this Eichmond yard the company not only failed to have a repair track as a means of safety to overhaulers, but failed to provide another simple and cheap safeguard, that is, signal flags. A flag in the end of the bumper of the first car to notify the conductor of the shifting engine that some one is working under the car is the usual means of protection given to overhaulers. The company recognized the necessity for them before the injury, for they used them before the injury in the Manchester yard. After Eorment was injured, the company showed its knowledge of the necessity for signal flags and had them put into use in the Eichmond yard.

The company undertook to prove to the jury, that before an overhauler should go under a car to work, it was his duty to notify the conductor or engineer of the shifting engine.

At the time of the injury, Horment was not of the same grade or same line of duty as Tiller, the engineer, or as Bobinson, the conductor of the shifting engine; nor was he under the orders of either of them. He was under the orders of Hewcome, the foreman of overhaulers and greasers. Teller and Bobinson were in the transportation department of the company and subject to the orders of West, the master of transportation. So, Honnent was not a co-employee with Teller and Bobinson in the sense which relieves the employer from liability for an injury done to one employee by the negligence of his co-employees. But the court below instructed the jury expressly that Tiller and Bobinson were co-employees with Horment, and that the company’was not liable to Horment for an injury resulting to him from their negligence. Such instruction was palpably erroneous. It was in direct opposition to the doctrine laid down by this court in Moon’s adm’r v. R. A. Railroad Co., 78th Va., 745, where it was held that a section master in charge of a squad of hands altering and repairing the road, could in no sense be regarded as the fellow-servant in the same common employment or department of service with the person injured, who was a train hand and brakeman—hence they were not co-employees thrown together in the performance of a common duty, and having opportunity to observe and judge of the habits and qualifications of each other. The doctrine laid down in that case was reaffirmed by this court in the case of B. & O. R. R. Co. v. McKenzie, supra, and is in full accord with Railroad Co. v. Ross, 112 U. S., 377.

It cannot be questioned that the injury to Horment was caused by the negligent act of Bobinson, the conductor, in shifting the car on the branch track where Honnent was at work in the regular course of his duty, and in cutting that car loose upon that track, and in causing it to strike against the car which stood on that- track in front of the car under which Xorment was engaged in fixing the draw-bar spring, as he was directed to do by his superior; and that in so doing without first taking pains to ascertain whether there was any person under that ear, was negligence for which the company is responsible.

In Norfolk and Petersburg R. R. Co. v. Ormsby, 27 Gratt., 455, it was held to be negligence for which that company was liable, that the obvious precaution was neglected, of making an examination before the stationary fiat at Howell’s was set in motion, to see if there was any one or any thing under or near the car which could be injured by its being put in motion.

Eor these reasons, we are of opinion that the circuit court did not err in overruling the motion of the defendant, (plaintiff' in error here), to set aside the verdict and grant a new trial, and that the judgment complained of must be affirmed with costs to the defendant in error.