R. & D. R. R. v. Risdon's Adm'r , 87 Va. 335 ( 1891 )

Lacy, J.,

delivered the opinion of the court.

F. P. Risdon, an employee of the plaintiff in error company, was employed on the night of the 2d of March, 1888, in the company’s yard at Charlottesville, in uncoupling cars. He had been employed as a yard-brakeman, and had had much experience as such. On the night in question a freight train arrived in the yard, and was at once put in charge of the yard-.crew, consisting of the yard-master, Keys; the engineer of the yard, Coleman, who was in charge of the yard-engine; Butler, the fireman, and Risdon, a brakeman. Keys had charge of the crew, and gave orders for shifting the crew. He directed that two cars should be placed on the track on the east side of whatis called a three-throw switch, which is fashioned according to the following diagram :

and two on the siding on the west side of the main track at this three-throw switch, and four were to be left on the main track. The night was dark; the yard engine was hitched by-its pilot to the south end of the train, and had its’ front towards the north. Keys ordered the train to move south until it had cleared the switch (on the diagram marked “X”) some seventy feet. He then so changed the switch that when the train backed it would run the train in on the right or eastern siding. He then walked south to where the train was standing, and got up on the south end of the second car from the rear and uncoupled it from the third, and gave the signal to the engineer to come back, and rode back on the top of the second car, holding the brake; and the engineer pushed the train upon the eastern or right siding, where the two cars were left standing, Keys paving put down the brakes. Before leaving the switch Keys told Risdon that at this stage he was -to change the switch, so as to throw the train on-.the left or west track, and then to uncouple two others, signal the engineer to come back, cut the two cars loose, and ride them in on the left or western siding. Risdon did change the switch, and, standing a.t his place at the switch, signalled the engineer to come back, which he did slowly, about four miles an hour, and as the train coming back passed Risdon, he ran in between the cars to uncouple them while in motion, stepped upon the middle frog, marked “5” in the diagram, got his foot caught fast, and was run over and killed, his shoe still sticking fast in the frog.

His administratrix sued the company and recovered damages on the first trial to the amount of $8,000, but this verdict the trial court set aside and awarded a new trial to the defendant company. At the second trial the verdict was for $7,250, and the court refused to set that aside, and rendered judgment in accordance therewith; whereupon the defendant applied for and obtained a writ of error to this court. All the evidence is certified, and, by virtue of the statute in this State (section 3484 of the Code of Virginia), the evidence must be considered according to the well-understood rule as to a demurrer to evidence, so often stated here, and familiar to the profession. Richmond and Danville R. R. Co. v. Moore's Adm’r, 78 Va., 96, 97, and cases cited.

Conceding that the frog in question was a dangerous frog— that it was the only dangerous frog in the yard—and conceding that this frog could have been rendered safe by blocking it, still it is an established fact that the deceased had been ■employed in this very yard, over this very frog, for some time before, and that this frog was under his eyes at all times, just as it was when his foot was caught in it. It is also true that the evidence shows that this frog, like all other frogs used by this company, was of the standard kind—was a standard frog.

If this deceased person was an employee of the defendant company, and this dangerous frog was open and obvious, did he not assume the risk incurred concerning it by being in the company’s employment. Nothing is better settled than that the implied contract between the employer and the employee is that the latter takes upon himself all the natural risks and perils incident to the service. When a servant enters upon an employment, he accepts the service subject to the risks incidental to it. An employee who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he had opportunity to observe and ascertain. If a man chooses to accept employment, or continue in it, with the knowledge of the danger, he must abide the consequences, so far as any claim against the employer is concerned. Clark’s Adm’r v. R. & D. R. R. Co., 78 Va., 717.

It was the duty of the company to exercise all reasonable care to provide and maintain safe, sound, and suitable machinery, road-way, structures, and instrumentalities; and it must not expose its employees to risks beyond those which are incident to the employment, and were in contemplation at the time of the contract of service, and the employee has a right to presume that the company has discharged these duties. O’Connell’s Case, 20 Md., 212; Scally’s Case, 27 Md., 589; Winder’s Case, 32 Md., 419; Clark v. R. & D. R. R., supra; N. & W. R. R. v. Cottrell, 83 Va. R., 519, and cited cases.

While this is true, however, the railroad company is not the insurer of the safety of the employees. Its duty to them is discharged by the exercise of ordinary care, and by ordinary care is meant such watchfulness, caution, and foresight as under all the circumstances of the particular service a corporation controlled by careful, prudent officers ought to exercise. Hence, it is not required to change its machinery in order to apply every new invention or supposed improvement in appliance, and it may even have in use a machine or appliance for its operation, shown to be less safe than another in use, without being liable to its employees for the non-adoption of the improvement, provided that the employee be not deceived as to the degree of danger which he incurs. Darracott v. C. & O. R. R., 83 Va. R., p. 294.

The frog in question was of the standard sort, and it was such as this employee well understood, or might, with ordinary care, have well understood, because it was under his eyes in his daily work, not only here, but at every switch at which his duty called upon him to stand. A striking illustration of this is furnished by the late case of Stewart’s Adm’r v. N. N. & M. V. Co., reported in the Virginia Law Journal, Vol. XIV, 444, the coal-chute in that case being characterized as a mantrap, as this frog in this case has been. In that case the coal-pier was first class in construction in every respect, yet the chutes were not covered up. In this case the frog was a standard frog, but it was not blocked.

In the case of Darracott v. C. & O. R. R. Co., supra, p. 294, the duties of an employee are set forth, where it is said: “And he must inform himself, as far as he reasonably can, respecting the dangers as well as the duties incident to the service upon which he enters. It has accordingly been held in numerous cases, and the principle is elementar}^ that where the employee’s wilful disobedience of the company’s rules is the proximate cause of the injury complained of, no recovery can be had of the company. And, in general, any negligence of the employee, amounting to the want of ordinary care, which is the proximate cause of the injury, will defeat an action against the company.” See that case and the cases cited.

We do not think that the railroad company was guilty of any negligence in having this, a standard frog, at this and every other switch on its line, nor was it negligence in the company not to block up this frog. But this employee was clearly negligent in going between these moving cars, in the dark, to uncouple them. It was contrary to his orders, which were to uncouple and ride them in. He might have uncoupled them while standing, before he started them by his signal to the engineer to come back, or he might have suffered them to run in on the left siding at the three-throw switch, stopped them by a signal from his lantern, and then he could have uncoupled them while standing still on the siding. Either was perfectly safe, and one (the first) safe way was the one he was ordered to pursue; but either would have involved a walk in the dark of some little distance, which, although disagreeable, would have been safe, and he could have done this as easily as the yard-master, who did it that way a few 'minutes before, before his eyes. But he chose to disobey his orders and risk it, although hazardous, and ran in upon his perilous venture—perilous at night with or without the presence of a frog. In the dark he could not see where he stepped; a rolling stone, a small hole, a mis-step upon the side of a rail or cross-tie, or on anything casually there, would have made the undertaking dangerous; but here was a frog known to him to be dangerous, and which he knew was just where it was, and was obliged to be close to this switch, and yet, as the cars passed the switch, he ran in right over the frog, and was unfortunately caught and held by it, and met a horrible death, which all humanity must deplore. But was the result caused by any default or neglect of duty by the company? We think not. And was not his own inconsiderate rashness the proximate cause of the misfortune which befell him? We think it was. And it follows that he cannot recover damages against the company for his injury, which he brought upon himself.

It is clear that the circuit court erred in its judgment in refusing to set aside this verdict and grant the defendant a new trial, and the said judgment must be reversed and annulled.