Froman v. Chesapeake & Ohio Railway Co.

138 S.E. 658, 148 Va. 148, 1927 Va. LEXIS 217
CourtSupreme Court of Virginia
DecidedJune 16, 1927
StatusPublished
Cited by6 cases

This text of 138 S.E. 658 (Froman v. Chesapeake & Ohio Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Froman v. Chesapeake & Ohio Railway Co., 138 S.E. 658, 148 Va. 148, 1927 Va. LEXIS 217 (Va. 1927).

Opinion

West, J.,

delivered the opinion of the court.

Janie Pearl Froman, administratrix of Robert E. Froman, deceased, brought an action against the Chesapeake and Ohio Railway Company for $10,000 damages for negligently causing the death of her intestate. The jury returned a verdict in favor of the plaintiff for $7,500, subject to the judgment of the court on the defendant’s demurrer to the evidence. The court sustained the demurrer and entered judgment for the defendant. To that judgment this writ of error was awarded.

[152]*152The plaintiff’s intestate, Robert E. Froman, was in the employ of the defendant company as field brakeman on its Fulton yards, near Richmond, Virginia. His duties, speaking generally, required him to go from point to point on the yard, to keep track of space for cars, and space cars when switching into tracks, to inform the foreman when couplings are to be made- and which tracks have cars on them, to open the knuckles, to make couplings, to put on and take off brakes, when necessary, and sometimes to throw the switches. The switching crew was made up of G. C. Christian, conductor and yard foreman, G. R. Baber, engineer, George Vermillera, fireman, Charles Stevens, brakeman, and Robert E. Froman, field brakeman.

The westbound Fulton yard, upon which the accident occurred, consists of a ladder or lead track, running nearly north ari;d south in a straight line, the south end of which is known a/s track No. one, and eleven switch tracks, each about one thousand feet long, numbered from two to twelve, inclusive, which are by switches connected with the lead track, on the west side thereof.

The accident occurred about one o’clock at night, while the crew were engaged in the switching operations necessary to classify cars for the Charlottesville and Potomac Yards. The twelve cars to be moved had been marked “Charlottesville” or “Potomac Yards,” and were standing on track No. eight, upon which Froman was killed. By classifying is meant the placing of all cars destined for one point on one track, and those destined to another point on another track. When this has been done the yard engine picks up the different groups or “cuts” of cars and places them together on the lead or ladder track as “cars classified as a train.” In doing the switching [153]*153necessary to group and place the twelve cars only the lead track, track No. eight and track No. one, were used.

G. C. Christian, sworn for the plaintiff, testified: “I told him (Froman) what I was going to do; Froman knew that I was going to switch what we class ‘Potomac Yards’ back to No. eight and the 181’s (‘Charlottesville cars’) to No. one and pick up the ‘Potomac Yards’ out of No. eight and put the whole lot in No. one.” “He knew just what tracks were being used.”

Other facts which the evidence and proper inferences to be drawn therefrom tend to establish, will be stated during the course of this opinion.

All twelve of the cars which were coupled together on track No. eight were pulled forward and stopped about five car lengths from the switch. Christian, in the presence of Froman, then uncoupled B. & O. car 7605 by pulling the lever, and left the knuckle open. He left Froman at this point and, under his order, the train carried the eleven cars next to the engine out on the lead track and “kicked” the three cars farthest from the engine down the lead track to and beyond switch No. two upon track No. one and left them there. Christian then threw the switch, and four of the remaining eight cars were “kicked” back into No. eight to be coupled to B. & O. car No. 7608. Open knuckles do not always couple automatically, and it was Froman’s duty to see that these cars were, at the proper time, coupled to the B. & O. car 7608.

The remaining four cars were pulled back on the lead track, to be “kicked” down the lead track to track No. one. Without looking to see whether the last four cars had gone into No. eight far enough to pass the clearance post, Christian signaled the engineer to, “shunt” the remaining four cars down the lead [154]*154track some distance to track No. one. The engineer immediately executed this order and was pushing these cars with great rapidity down the lead track when Christian discovered that the last cut of cars “kicked'” into No. eight had not passed the clearance post, and would be “sideswiped” by the cut of cars which was then on its way to track No. one, and to prevent this “sideswipe” he threw the switch back to No. eight and gaVe the engineer a “shut-off” signal with his lantern. The lantern went out and the engineer did not see the signal. The result was that the last cut of cars ran against the cut on track No. eight with great force and violence, knocking the drawhead down on one of the cars and knocking the cars forward about five car lengths, causing them to run ovier and kill Froman. Froman’s body was found about five car lengths down in the track and his hat and lantern were found about one car length nearer the switch. The “dirt was rumpled up” at that point, indicating that he had. been hit there. Dr. J. .Fulmer Bright, the coroner, testified that his death was due to traumatic injuries, and that his chest was crushed and his left foot mangled.

The defendant introduced no evidence and based t the demurrer to the evidence on the following grounds:

“(1) That the defendant was not negligent.

“(2) That if it were, decedent was contributorily negligent.

“(3) That decedent assumed the risk which caused his death.

“(4) That the evidence fails to show in a manner required by law how and by what means decedent met his death, and fails to connect the defendant with the same.”

The rule of decision on a demurrer to the evi[155]*155deuce is that if the evidence is such that the jury might have found a verdict for the demurree, the court must so find, and enter judgment accordingly.

In Burks’ Pleading & Practice (2d ed.), page 479, the law is stated thus: “In Virginia the rule of decision on a demurrer to the evidence has been stated in many cases to be that, where, upon the demurrer to the evidence, the evidence is such that the jury might have found the verdict for the demurree, the court must give judgment in his favor; and if reasonably fairminded men differ about the matter, the demurrer should be overruled.”

(a) Was the defendant negligent?

A railroad company is not required to exercise prevision for the protection of employees engaged in work in railroad yards, who can protect themselves against all dangers which are usually ■ and naturally incident to the work in which they are engaged; but is liable, if knowing, or having cause to believe, the employee is in a place of danger, it fails to exercise ordinary care to protect him. While the company has a right to assume that its employees will look out for their own safety against all damages naturally incident to the work in which they are engaged, they have no right to expect them to protect themselves against injuries which are due to the failure of the company to exercise ordinary care for their safety.

Ordinary care required Christian to look and ascertain whether the last cut of cars which was “kicked” into No. eight had passed the clearance post, before “kicking” other cars along the lead track to track No. one. He negligently and carelessly, in order to prevent a “sideswipe” injury to the cars, threw the switch to No.

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Bluebook (online)
138 S.E. 658, 148 Va. 148, 1927 Va. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/froman-v-chesapeake-ohio-railway-co-va-1927.