Norfolk & Western Railway Co. v. Cromer's Administratrix , 99 Va. 763 ( 1901 )

Keith, R.,

delivered the opinion of the court.

The west-bound passenger train on the Norfolk and Western •railway approached Pulaski, a station on that road, at about 8:15 P. M. on January 6, 1900, one hour and thirty minutes-late, .and within the station limits came into collision with some ■freight cars which had escaped from the siding upon which they were standing, and Cromer, the fireman on the passenger train, ■was killed. His administrator brought suit against the N. & W. Railway Company, charging its negligence as the cause of the accident. A verdict and judgment were rendered for the plaintiff, and the case is before us upon a writ of error.

The evidence tends to show that the passenger train at the •time of the collision was running at the rate of thirty miles an hour; that the rules of the railway company required that “when within the limits of the various yards, all trains must be run with . great care, and under the control of the engineman. •

“Switching engines will have the right to' work within yard limits, upon the time of second and succeeding class trains, and .also upon the time of delayed first-class trains, but must clear the track immediately upon their arrival. The main track must be kept clear for firshclass trains that are on time. ‘First-class’ trains means passenger trains, and ‘second-class’ trains means freight trains;” that rule 164, especially applicable to firemen, reads as follows: “When running upon the road they must keep a constant lookout ahead when not engaged in firing, and give notice to the engineman of any signals or indications of danger. If the engineman has to look away from the track in front for any reason, the fireman must maintain the watch until the engineman can resume it. They will not put coal in engines when coming into stations or at such other points as safety requires that they keep lookout ahead,” and that the deceased had been furnished with a book of rules; that the yard limits at Pulaski are about one-half mile east of the scene of the accident, which occurred at a point some hundreds of yards east of the station-house, and about fifty yards east of the point where the side tracks enter the main track; that on the evening of January 8th, thirteen freight cars loaded, some of them with iron, and others with coke for the use of the Pulaski furnace, were standing about 600 yards west of its intersection with the main track; that one of the cars had been inspected on the 2nd, seven of them on the 6th, and five of them on the 7th. of January; that they were sufficiently equipped with brakes, which were in good order, and that they were standing upon the siding controlled by the brakes at about six o’clock on the evening of the accident, and that the cars would not have been moved unless the brakes had in some way been released.

The following occurrence is of interest as tending to show the sufficiency of the brakes to control the cars upon the sidings: On Saturday preceding the accident, the employees of the company charged with that duty were putting cars in upon the siding, some of which were loaded with coke. When they came into contact with cars laden with ore standing towards the east-end of the siding, the coke cars, which were being pushed, and the ore cars, which were at rest, did not couple, and the latter were put in motion by the jar. A brakeman sprang from the car upon which he was standing, overtook the ore cars, seven in number, which were moving off, applied brakes sufficient to stop them, and then at least two more brakes, out of abundant caution. It would seem that brakes which were sufficient to stop cars when in motion would be ample to hold them when at rest.

There is a suggestion on the part of counsel that the brakes might have been so affected by expansion and contraction, due to natural causes, as to render them ineffectual, but there is no evidence to that effect. At the junction of the siding with the main track there is a device known as the “Romapo Switch,” which works either by hand or automatically, and is so arranged that if thrown for the main line—that is to say, so adjusted that a car upon the siding, could pass to the main line1—or if a car were to run through the switch as the result of an accident, it would show a red light, or the absence of any light, should it chance to be extinguished or obscured from any cause, would be a warning of danger. In other words, a white light at the switch is the only assurance of safety. The rules prescribe, as we have seen, that within the limits of the yards trains must be “run with great care and under control of the engineman,” and the evidence shows that a train is under control when it can be stopped promptly or within the limit of vision.

It appears that at many points on the N. & W. railwav there are upon the sidings derailing switches, by which one of the rails is .moved so as to break the continuity of the track and derail a car passing over it; that there had been such a switch at Pulaski, which had been removed about six months before the accident, and there is no direct evidence that Cromer knew either of its former existence, or of its subsequent removal. There is evidence tending to show that such a contrivance is necessary to prevent the escape of cars placed upon sidings, and also evidence that they are used only where there is a continuous descending grade from the siding to and upon the main track, so that a car escaping from the siding would ran wild upon the main track, and that at Pulaski there was not a continuous descending grade from the siding to the main track, but after passing out upon the main track the escaping car would be brought to a standstill by an up-grade.

There is a good deal of conflicting evidence as to the effect of a derailing switch, some witnesses regarding it as a complete protection against cars leaving a siding, while others state that when the derailer is placed at the usual point, near the intersection of the siding and the main track, a number of oars getting loose upon the siding, the one in front becoming derailed, a wreck would be caused if the cars had acquired any considerable momentum, and in case of a wreck it might block the main track, as no one could foretell in what direction wreckage would be thrown. That this had occurred at Pulaski on one occasion 'before the derailer was taken out, and the main track had been blocked. If the derailer were placed a sufficient distance from the main track this danger would be removed, but the side track between the derailer and the main track would be useless, and therefore derailers were placed a short distance from the point of intersection. The evidence fails to show at what precise time the freight cars escaped. They are shown to have been on the siding with sufficient brakes, in good order, and properly set, at about six o’clock on the evening of the accident. Collision occurred at about 8:15 P. hi. At what time intermediate between 6 and 8:15 they escaped is left to mere conjecture.

The evidence shows that the engines, cars, tracks, and general equipment of the road were in a reasonably safe condition, and the negligence imputed seems to rest upon the proposition that it was the duty of the road to maintain a derailing switch at this point; while the railroad company relies for its defence—.first, upon the absence of any proof of negligence on its part; and .secondly, upon the charge of contributory negligence on the part of the deceased. ,

These being the facts which the evidence tends to' prove, we will consider the instructions given to the jury.

The second instruction asked for by Cromer’s administrator and given by the court is erroneous. It leaves out of view all appliances furnished by the railroad company for controlling cars upon side tracks, and leaves the jury to determine from the evidence that the absence of a derailing switch was in itself such negligence as rendered the defendant company liable for the accident which occurred. It may.be, as is stated in the instruction, that a derailing switch was in common use at the time, but its use elsewhere may have been under conditions altogether different from those which existed at Pulaski. It is also erroneous because it states that if the negligence of the defendant company was the proximate, or one of the proximate causes, of the accident which resulted in 'Cromer’s death, the company is liable in damages. It may be that the absence of the derailing switch was a condition in the absence of which the accident would not have occurred, but assuming that there may be more than one proximate cause for the occurrence, and that the negligence of the railroad company was one of those proximate causes, the instruction as drawn would in such case be misleading. The railway company claims that the contributory negligence of Cromer himself was the proximate cause of the accident, and there is evidence tending to prove that contention. To single out, therefore, one element of negligence and make that the foundation for holding the company responsible would be error. Piad the instruction been correctly drawn in other respects, and the negligence of the defendant company stated as the proximate cause of the accident, it would have 'been free from objection, but under the facts in this case, and under the instruction as drawn, the jury would have been warranted in fixing responsibility upon the railway company, although they might have believed that the accident was in part at least ■due to a cause for which the railway company was not responsible. The railway company was bound to exercise reasonable care for the safety of its employees, but was not bound to provide the latest inventions or the most newly-discovered appliances. The master is not required to use more than ordinary care, no matter how hazardous the business may be in which the servant is engag’ed. Bertha Zinc Co. v. Martin’s Adm’r, 93 Va., 791; Berns v. Coal Co., 27 W. Va., 285; Titus v. R. R. Co., 136 Penn. St., 618; Coppins v. R. R. Co., 43 Hun, 26.

The law is well stated in Kern v. Befining Co., 125 N. Y., at page 54: “The master, in performance of his duty to his servants, is not bound to furnish the best known appliances, but such only as are reasonably safe; the test is not whether he has omitted to do something which he could have done, nor whether better machinery might have been obtained, but whether his selection was reasonably prudent and careful, and whether the machinery provided was in fact adequate and proper for the use ■to which it was to be applied. Stringham v. Hilton, 111 N. Y., 195.”

Ignoring all the appliances with which the freight cars were •equipped and which the evidence tends to show were sufficient for their control, this instruction singles out the derailing switch, and authorizes the jury to consider its absence as in itself sufficient to establish the negligence of the defendant. Judge Riely said in New York, &c., R. R. Co. v. Thomas, 92 Va., 609: “Calling the special attention of the jury to a part only of the evidence, and the particular fact or facts it may tend to prove, and ignoring the residue of the evidence and the facts it may tend to prove, gives undue prominence to such recited evidence, and disposes the jury to regard it and the fact it tends to prove as the particular evidence, and the facts to be relied on in determining the issue before them, and thus misleads them.” See Montgomery’s Case, 98 Va., 860.

Instruction No-. 4 tells the jury that if they believe from the evidence that loaded cars were left upon the side track in the yards at Pulaski in a careless and negligent manner by the employees of the company, or that the employees operating its cars and engines carelessly and negligently caused them to start east upon the side track, and were carried by their weight from the side track to the main track and caused the accident, such employees were fellow-servants of Percy Cromer; but if they further believed from the evidence that the defendant company failed to discharge its duty to furnish reasonably safe appliances and to provide the side track with a derailing switch, the defendant company was liable.

After a careful examination of the evidence, we have been unable to discover any proof that the cars upon the side track were placed there in a careless or negligent manner, or that the employees of the company by their negligence set those cara in motion. On the contrary, the only evidence-upon the subject is to the effect that two hours before the accident occurred these freight cars were standing where they had 'been placed, under control of the brakes with which they were equipped.

The fifth instruction proceeds upon the idea that the duty of the defendant company to exercise ordinary care for the protection of its employees could only be met by providing a derailing switch to- prevent the movement of cars from the side track to- the main track.

In the case of Hewitt v. Railroad Co., 67 Mich., 61, it was held: “Where, in a suit against a railway company for injuries sustained by a collision with a flat car which had by some means run out from a side track on to the main line, there was no testimony tending to show that the side track was not in proper condition, or in such condition that, in the use made of it by the company, exercising care, a flat car standing upon the siding was in danger of coming out upon the main line, nor that ordinary care was not observed by the company in placing the cars where it did upon the- side track, and which it had been accustomed to do, with an experience of safety, for more than sixteen years.

“Held: That the jury should have been instructed, as requested by the defendant, that it was not its legal duty towards the plaintiff, an engineer in its employ, to provide said side track with stop-blocks, and that its omission so to do was not an actionable negligence; and that a modification of such request by leaving it for the jury to find whether such car was liable to get out on to the main line by reason of any peculiar construction or condition of the side track was error.”

The case just cited is far stronger against the railroad company than the one under consideration, for in that case it appears that the flat car which escaped, and with which the moving train came into collision, was not furnished with brakes, the court holding that it was not the legal duty of the defendant to provide the car with brakes; and the jury were instructed that “if it had no brakes at the time of the accident, this did not establish the negligence in that regard against the defendant, nor entitle the plaintiff to- recover.” It was also held that “a railway company is not bound to change its manner of using its side tracks, nor adopt the most approved ways or appliances in business; and if one of its servants, knowing, or having ample means of knowing from long-continued employment, the way and manner in which the- side tracks are used, continues in the employment without complaint, and if from such way and manner is subjected to risks or accident, he is presumed to assume such risks, and, if injured thereby, cannot recover.”

The eighth instruction is obnoxious to- the same objections that have already been pointed out with respect to the second instruction.

The tenth instruction is, we think, erroneous. It tells the jury that although the engineer of the passenger train may have been guilty of negligence in failing to bring his train under control when lie approached the station, yet if, in the opinion of the jury, the defendant company was negligent in not having furnished a derailing switch, they should find for the plaintiff. The evidence does not show at what time the freight cars left the siding and entered the main track. They were safely upon the side track at 6 P. M. They were upon the main track at 8:15 P. M., but at what instant of time they escaped does not appear. If they were upon the track when the engineer approached the station, then, although it may be conceded that the freight cars escaped through the defendant’s negligence, yet the defendant woidd not be liable if the engineer by the exercise of ordinary care could have avoided the consequences of such negligence. This is a principle so well established as to need no citation of authority.

In this case the negligence, if any, of the company consisted in the escape of the freight ears from the siding, and their presence on the main line. At what time they reached the-main line does not appear. If they were there when the moving train approached Pulaski, then in passing the Romapo switch it must have displayed a red light, or if the device by which that signal should have been exhibited was put out of order by the freight cars passing through the switch, or the cars intervened and obscured the light, or if from any cause a white light was not shown, all were equally warnings which it was the duty of the engineer and fireman to observe and to heed, and had they done so it would seem that the consequences of the defendant’s negligence, conceding that the evidence establishes such negligence, might have been avoided, for the cars which it negligently permitted to escape, if such be the fact, were at rest, and could have been seen, and a collision with them avoided by the approaching train, had the rules of the company been observed. This is so unless the freight cars moved out upon the main track as the passenger train drew near, or so recently before that there was not reasonable opportunity afforded the engineer and fireman to discover the presence of danger and take precautions for its avoidance. But we cannot assume the time at which the freight cars reached the main track, and if that fact is of importance it is for the plaintiff to prove it, or it must at least appear in the evidence. The plaintiff cannot, as we shall presently see when we come to the discussion of a subsequent instruotion, ask the court to indulge in speculation or conjecture as to the cause of the accident. It was erroneous, therefore, to tell the jury, as this instruction does, that the railroad company would be responsible notwithstanding the negligence of the engineer if the escape of the freight cars from the siding was due to the negligence of the defendant company.

The thirteenth instruotion states that where an injury to an employee has been caused by the default of a fellow-servant concurring with the negligence of the company, the company is liable as though it only were at fault, and that if they believe that the engineer of the train upon which Cromer was fireman was negligent and failed to have his train under control, in obedience to the rules of the company, such negligence is the negligence of a fellow-servant, 'but nevertheless that if it was the duty of the defendant company to provide a derailing switch in order to prevent dead cars from drifting from the side track upon the main line, and it was negligent in failing to provide such derailing switch, such negligence concurred with the negligence of the engineer as aforesaid, as the proximate cause of the accident complained of, and the defendant company is liable.

At the risk of repetition, we must say with respect to this instruction that it singles out the absence of the derailing switch and presents it to the jury as controlling evidence of negligence, or at least leaves them to determine, without regard to the other facts proved in the case, that the failure to provide a derailing switch was sufficient to warrant a verdict for the plaintiff, leaving out of view altogether other provisions made for the control of cars upon the siding which may have been entirely adequate, and which the evidence tends to prove were quite sufficient. When it is said that an injury to an employee caused by the default of a fellow-servant concurring with the negligence of the company renders the company liable, as though it only were at fault, it is necessary to the application of the principle that the negligent act of the fellow-servant and that of the company should concur in producing the result; that is to say, must be simultaneous, both of them operative and effectual at the time of the accident, and not stand in the relation of remote and proximate causes to the event, for if the latter be the case, then the situation would be controlled by the principle just adverted to, that though a negligent act upon the part of the company may be established, the plaintiff would not be entitled to recover, if by reasonable care upon his part the consequences of the defendant’s negligence could 'have been avoided.

The fourteenth instruction is objectionable for reasons already stated, and which need not be repeated.

Instruction Ho. 15 undertakes to define contributory negligence, and tells the jury that if the defendant company relies for its defence upon the contributory negligence of the deceased, Percy Cromer, in order to avail itself of that defence, the company is required to prove—first, that said Percy Cromer was guilty of negligence; and second, that but for his negligence the accident would not have occurred, and that the burden is upon the defendant to prove such negligence.

It is not necessary to the defence of contributory negligence to show that but for it the accident would not have occurred; that would make it the sole and not the contributing cause of the accident.

“One who, through the mere negligence of another, suffers an injury which would not have happened, but for his own or his agent’s wrongful act or want of ordinary care, proximately contributing thereto, cannot recover at common law any compensation for such injury, unless its more proximate cause is the omission of the other party, after having notice of the danger to nse due care to prevent injury. This rule applies to all cases of mere negligence, no matter how gross it may be.” Shearman & Red. on the Law of Neg. (5th ed.), sec. 61. This is in ■entire accordance with what was said in considering instruction Ko. 10.

Assuming that the presence of the freight cars upon the main track was evidence of negligence upon the part of the defendant company, yet, if by the exercise of ordinary care on the part of the engineer or fireman the presence of those cars upon the track could have been discovered in time to prevent a collision, then it is obvious that the negligence of the fireman or engineer is the proximate cause of the injury, and not the precedent negligence of the railroad company, the consequences of which could have been avoided. In such a case the negligence of the employees and the original negligence of the defendant company are not concurrent, but stand to each other in the relation of proximate and remote causes. The very term “contributory negligence” implies that it need not be the exclusive cause of the injury. It is enough if it contributes to the injury. “It is not essential to this defence that the plaintiff’s fault should have been, in any degree, the cause of the event by which he was injured. It is enough to defeat him, if the injury might have been avoided by his exercise of ordinary care. The question to be determined in every case is, not whether the plaintiff’s negligence caused, but whether it contributed to the injury of which he complains. This it may do> by exposing him to the risk of injury, quite as effectually as if he committed the very act which injured him. Keither is it necessary that the plaintiff’s negligence should have contributed to the injury in any greater degree than the negligence of the defendant.” Shear. & Red. on the Law of Negligence (5th ed.), sec. 96. These principles are elementary, and the text from which we quote is supported by a great array of authority. R. R. Co. v. Patterson, 93 Ill., 290; Railway Co. v. Folkes, 76 Ga., 527; Sutherland v. R. R. Co., 125 N. Y., 137.

We come now to the instructions asked by the railroad company. All the propositions embraced in instructions numbered 1, 2, and 3 are stated in a manner more directly applicable to the present case in instruction No. 4. There is evidence tending to prove all the facts hypothetically stated in that instruction, and if the jury believe that they were proved, then the conclusion would necessarily follow, and the negligence of the engineer, the fellow-servant of Cromer, would have been the proximate cause of his injury.

Instruction No. 5 tells the jury that the burden of proof is upon the plaintiff to prove negligence, and that the proof must amount to more than a probability of a negligent act; that the verdict cannot be founded upon conjecture.

In Bailey on Personal Injuries, sec. 1672, et seq., the law upon this point is clearly and tersely stated: “Where it is necessary to show a certain state of facts, it is not sufficient to prove two or more different states of case, one of which may be sufficient, but either of which may equally, under the testimony, have existed.

“The plaintiff must prove something which warrants the inference of negligence on the part of the defendant, and not base his case upon facts just as consistent with care and prudence as with the opposite.

“Where the • evidence is equally consistent with either view, the existence or non-existence of negligence, it is not competent for the judge to leave the matter to the jury. The party who affirms the negligence has failed to establish it. This is a rule which never ought to be lost sight of.

“An inference cannot be drawn from a presumption, but must be founded upon some, fact legally established.”

The principle there stated is affirmed in C. & O. Rwy. Co. v. Sparrow, 98 Va., at page 640, where Judge Cardwell says: “To fix a liability upon the master for injuries sustained by a servant while engaged in his employment, the negligence of the master, as the proximate cause of the injury, must be proved by affirmative evidence, which must show more than a probability of a negligent act.” And in the same opinion the case of Sorenson v. Menasha Paper Co., 56 Wis., 338, is quoted with approval: “When liability depends upon carelessness or fault of a person or his agents, the right of recovery depends upon the same being shown by competent evidence, and it is incumbent upon such a plaintiff to furnish evidence to show how and why the accident occurred-—some fact or facts by which it can be- determined by the jury, and not be left entirely to conjecture, guess, or random judgment, upon mere supposition, without a single known fact.”

It is suggested by counsel for plaintiff that the: effect o-f changes in temperature in expanding and contracting the brakes might have released their hold upon the cars and been the cause of the accident, but there is no proof upon the subject. In Hewitt v. R. R. Co., supra, it was claimed that the car could have been moved by the wind which was blowing the evening of the collision, or by some force imparted to it by a freight train which ran into the siding a few minutes before the collision and remained until another train had passed and then drew out. “Ho one, however, (says the court), saw the freight train touch or come in contact with the flat car while the former was upon the siding. The record discloses nothing but mere conjecture how, and by what power, and in what manner, the car was run- upon the main track and placed in the position it was found when the plaintiff’s engine struck it. The defendant, however, without pretending to- any knowledge as to how the car was moved out on the m'ain line, advances a theory really quite as plausible upon the subject as -any suggested by the plaintiff, which was that some person or persons, through malicious motives, took that occasion and such means to obstruct the track on tli" defendant’s main line, in such, manner as to cause the collision that occurred, and actually gave some testimony which tended in that direction.”

Instruction Ho. 5 correctly propounds the law, and should have been given.

The ninth instruction asked for by the defendant should have been given. It correctly states the law to be that it is the duty of the master to use ordinary care and diligence to provide a reasonably safe place in which his servant is to work, considering the character of the work to be done; that in such matters even the skillful and experienced will frequently differ in their choice of instrumentalities, and the master should not be judged negligent for not conforming to a method believed by some to be less perilous than the one he has adopted; that ordinary care depends on the circumstances of the particular case, and is such care as a person of ordinary prudence would exercise under all the circumstances.

Did the master exercise reasonable care for the safety of his employees—such care as a person of ordinary prudence would under the circumstances have exercised? Bertha Zinc Co. v. Martin’s Adm’r, 93 Va., 791. There is evidence tending to prove that such care was observed by the railway company. Its tracks, side tracks, switches, indeed, its whole road-bed, were under the supervision of competent officials. There is no evidence of the incompetency of any official charged with the construction, care, and supervision over the roadway, including sidings and switches. There is evidence tending to prove that the engine, cars, tracks, and general equipment of the road were in a reasonably safe condition, and that the escaping freight cars were equipped with brakes sufficient to control them. As was said in Hewitt v. R. R. Co., supra: “It is not contended but that the defendant procured the services of competent and skillful servants, engineers, and mechanics in the grading and construction of its tracks at that station, and its testimony is to the effect that the tracks were properly made and constructed. It is true, the contrary is claimed by the plaintiff, but the record contains no proof "to- support the claim.”

Instructions Nos. 2 and é given by the court are' erroneous, for reasons which have already been sufficiently considered.

Exception was taken by the- defendant to the closing speech before the jury of counsel for defendant in error, but as the case must go back, we shall not pass upon this assignment of error, as the passages objected to, some of which approached, if they did not transcend the bounds of propriety, may not be repeated.

We deem it inexpedient to express any opinion upon the evidence, except as we have found it necessary to do so in passing upon the instructions given and refused. ■

Upon the whole case we are of opinion that the judgment of the Circuit Court should be reversed.

'Reversed.