Home/Court of Appeals of Virginia/Chesapeake & Ohio Railway Co. v. Palmer

Chesapeake & Ohio Railway Co. v. Palmer

140 S.E. 831, 149 Va. 560, 1927 Va. LEXIS 196
CourtCourt of Appeals of Virginia
DecidedDecember 22, 1927
StatusPublished
Cited by12 cases

This text of 140 S.E. 831 (Chesapeake & Ohio Railway Co. v. Palmer) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chesapeake & Ohio Railway Co. v. Palmer, 140 S.E. 831, 149 Va. 560, 1927 Va. LEXIS 196 (Va. Ct. App. 1927).

Opinion

Holt, J.,

delivered the opinion of the court.

This is an action by motion to recover damages for injuries suffered by the defendant in error, B. W. Palmer. There was a verdict and judgment for the plaintiff. To this a writ of error has been obtained.

Brooks-Calloway Company, an independent contractor, undertook to do certain work for the Chesapeake and Ohio Railway Company in and about its yards at Clifton Forge, Virginia. This wotk was quite extensive. Palmer, prior to the date of his injuries, had been employed by that construction company for a period of about two weeks. He was a member of what was known as the /‘mud track” gang, which consisted of eight men who worked on a tract at the extreme south or Jacksodi River side of the yard. On. [564]*564the morning of the accident, and at about nine o’clock on November 2, 1923, he was engaged in dumping mud near the “point of clearance” shown upon the blue print, which is incorporated into this opiniom Some distance across the yard at approximately one hundred and fifteen feet was a water plug sometimes called a “water column.” The morning was clear and cold. He started across the intervening tracks to this “water column” to get a drink of water, as was his custom. Other members of his gang were in the habit of doing the same thing. When he reached that next to the water column, and at a point approximately forty feet east thereof, it may have been a few feet less, he stumbled on the south rail, fell and in doing so was stunned. He saw an engine approaching, but owing to his dazed condition, was not able to remove himself from the place of danger. He did, however, succeed •in dragging his body across the north rail. While engaged in this attempt the engine ran over and cut off both his legs, and that accident is the foundation of this action. There were two trials. The first, had in June 1925, resulted in a verdict in favor of the plaintiff in the sum of fifteen thousand dollars ($15,-000.00). On motion of the defendant the trial court set it aside as contrary to the law and evidence, and ordered a new trial, to which action of the court the plaintiff duly excepted. In June 1926, another trial was had, which resulted also in a verdict for the plaintiff. The recovery in this instance being twelve thousand five hundred dollars ($12,500.00). The defendant moved to set it aside. This motion was overruled, and judgment for said sum entered. It is to this that a writ of error was obtained.

In such circumstances we look to the first trial. Should the court upon an inspection of the record [566]*566there be of opinion that the first verdict should have been confirmed, it will so order, and not undertake to examine the proceedings of the second trial at all. On the other hand, should it appear that the first verdict was properly set aside by the trial court, it becomes necessary as a matter of course to examine the second record.

[565]*565

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Bluebook (online)
140 S.E. 831, 149 Va. 560, 1927 Va. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chesapeake-ohio-railway-co-v-palmer-vactapp-1927.