Richmond Locomotive Works v. Ford

27 S.E. 509, 94 Va. 627, 1897 Va. LEXIS 119

• Court: Supreme Court of Virginia
• Decided: June 17, 1897
• Status: Published

Opinion

Buchanan, J.,

delivered the opinion of the court.

Ford, the defendant in error, who was injured whilst employed by the Richmond Locomotive Works, instituted his action in the Circuit Court of the city of Richmond to recover damages therefor. A trial was had in that court but the jury failed to agree. Ford afterwards dismissed that case, and brought his action in the Law and Equity Court of that city, upon the same cause of action. A motion was made by the Locomotive Works in the last named court to have the cause removed to the Circuit Court where the first action was brought. This motion was overruled, and that action of the court is the first error assigned in the petition. In oral argument, however, that assignment of error was abandoned, and pioperly so in our opinion.

The next error assigned is to the action of the court in overruling the demurrer, which was to the whole declaration, ana to each count thereof. The objection made to the first count is, that it does not show in what capacity the plaintiff was upon the premises of the Locomotive Works when injured, whether as trespasser, licensee, or employee.

• This question was considered in the case of Jones v. Old Dominion Cotton Mill, 82 Va. 140, 147-8, and such averment held to be unnecessary where the declaration distinctly sets forth (as is done in this case) when, where, in what manner, and under what circumstances the plaintiff was injured by the default, negligence, and improper conduct of the defendant's servants.

The objection made to the third count is that it alleges that the defendant was in fault in not furnishing to the plaintiff for the purpose of moving wheels certain implements then in the defendant’s yard, and well known to it, but fails to state what those implements were.

There was no necessity for stating what they were. The only effect of stating that proper implements for moving the wheels were in defendant’s yard was to limit the plaintiff’s evidence to such implements. Neither did the court err in overruling the defendant’s motion to require the plaintiff to file a bill of particulars under that count.

The demurrer to the whole declaration and to each count thereof was properly overruled.

The court permitted the plaintiff over the defendant’s objection to prove the manner in which large driving wrheels of locomotives were handled at the shops of the Chesapeake & Ohio Railway Company. In this the court erred. A witness having sufficient knowledge may testify as to the general practice of machine shops in moving such wheels, and the comparative safety of different methods, but it is not competent to show that the different method of another shop is better than that of the defendant. It is supposed that in such matters even the skillful and experienced will frequently differ in their choice of instrumentalities. A party should not be judged to be negligent for nob conforming to some other method believed by some to be less perilous. 1 Baily on Personal Injuries, sec. 1744. The fact that the shops of the Chesapeake & Ohio R. Co. were located near to those of the defendant cannot affect the question.

It is also assigned as error that Duffy, one of the witnesses of the plaintiff, v¡ as permitted to testify as an expert when it was not shown that he had such knowledge as entitled him to speak as such. It is not altogether clear that the witness had sufficient knowledge upon the subject to be considered an .expert, but a trial court will not be reversed for allowing a witness to testify as an expert unless it appears clearly that he was not qualified, as the question of the qualification of the witness is largely in the discretion of the trial court. Perkins v. Stickney, 132 Mass. 217; 1 Greenleaf on Ev. (14th ed.), notes to sec. 440.

It was error in the court to allow the witness Gordon to testify that he quit the service of defendant the morning after the plaintiff was injured “because they would not move the tires so as to get room to move the wheels.” This evidence was clearly inadmissible. The liability of the defendant was to be determined from what took place before and at the time of the accident. What the employees of (the defendant did afterwards, and their reasons for such action, were irrelevant and immaterial.

The next assignment of error is to the action of the court in giving and refusing to give certain instructions.

The plaintiff asked for eight; the defendant for thirteen; and in lieu of those asked for by the parties the court gave thirteen instructions of its own, some of which, however, were the same as asked for. Whilst the instructions asked for and given are quite numerous, the questions of law involved in the case upon the. merits are few.

One of these questions is whether Fogg, the leader or foreman of the gang of hands with which the plaintiff was working when injured, was the representative or vice-principal of the defendant, or whether he was a fellow-servant of the plaintiff.

It appears that the plaintiff, who was about nineteen years of age, was employed as one of a lot of hands known as the “laborers’ gang,” by the defendant, at its works, to do all the heavy moving and lifting in its shops. At the time of the accident in question a portion of this gang was engaged in moving heavy locomotive wheels (which had been placed or piled on edge near one of the doors of the shops), in order to get at certain wheels taken off of a locomotive then in the-shops for repair, and which were needed.to put back upon it. For the purpose of getting to these wheels, the gang of hands moved back the first v heel in the pile a short distance, put a piece of timber through its eye or bore, and rested it upon another piece of timber.' They then removed another, or perhaps two other wheels and set them up against the first wheel, and were moving another wheel when it escaped from their control, and fell against the wheels which had been removed and had in the mean time fallen, the support under them having given away. When it struck those wheels it slid or slipped on the floor on which they were piled, and caught the plaintiff’s leg, and caused the injury complained of. Fogg was the boss or leader of the gang, fie received his instructions from the foreman of the machine shop and directed the gang in its work, and worked with them himself, though there is some conflict in the testimony as to the extent and character of the work done by him. He had no power to employ or discharge members of the gang. If they refused to do what he directed he reported the fact to the foreman of the shops, who exercised that power.

The ground upon which it is insisted that Fogg and the plaintiff were not fellow-servants is that Fogg occupied a higher position, was in charge and control of the plaintiff, . and ordered him to do the work alleged to have been dangerous. Conceding that the leader or boss of the gang of hands occupies a higher position than the other members of the gang, and that he had control of and power to direct, and did direct, the gang in their work, which had been directed, to be done by the foreman of the machine shops, it is clear that he was a fellow servant with the other members of the gang. The mere fact that one servant is superior in authority to another does not have the effect of changing his relation of fellow-servant, unless his superiority places him in the category of vice-prineipah This is one of the propositions announced in the case of the N. & W. R. R. Co. v. Nuckol's Adm'r, 91 Va. 193, a late ease, in which the question of the master’s duty and liability was carefully considered.

Fogg and his gang of hands, fifteen or sixteen in number, were under the control and direction of the foreman of the machine shops, and did such work as he directed done. Where the execution of work directed to be done by the master or his representative is entrusted to a gang or group of hands, it is necessary that one of them should be selected as the leader, boss, or foreman, to see to the execution of such work. “This sort of superiority of service,” as has been said, “is so essential and so universal that every workman, in entering upon a contract of service, must contemplate its being made in a proper case. He, therefore, makes his contract of service in contemplation of the risk of injury fiom the negligence of a boss or foreman, as well as from the negligence of another fellow-workman. The foreman or superior servant stands to him in that respect in the precise position of his other fellow-servants.” O'Brien v. Am. Dredging Co., 53 N. J. L., 291; Central R. R. Co. v. Keegan, 160 U. S. 259; North. Pac. R. R. Co. v. Peterson, 162 U. S. 346.

But it is said that, if be was not the representative of the defendant in executing the work his gang were required to perform, he was its representative in the matter of furnishing and maintaining a safe place in w hich they were to- work. The rule is well settled that it is the duty of the master to furnish and maintain a reasonably safe place in which his servants are required to work; that this duty is personal to him and is one of the duties imposed upon him in the exercise of ordinary care for the protection and safety of his servants. 2 Baily on Personal Injury, sec. 2895; N. & W. R. R. Co. v. Nuckol's Adm'r, 91 Va. 193; Bertha Zinc Co. v. Martin’s Adm'r, 93 Va. 791; N. & W. R. R. Co. v. Ampey, 93 Va. 108.

If the defendant failed to furnish them a safe place in which to work, in the first instance, or having furnished them such a place, and it afterwards became unsafe, and the defendant knew, or ought to have known, of its unsafe condition, and failed to remedy it within a reasonable time, and the plaintiff was injured in consequence thereof, whilst exercising ordinary care in the performance of his work, the defendant would be liable therefor. But if the premises were in a reasonably safe condition when Fogg directed the wheels to be removed, and were rendered unsafe, as is contended, by the negligent manner in which he directed it to be done, the defendant is not responsible for such negligent act. The manner of performing.each of the various details by which the wheels were to be gotten out and taken where they were needed, rested necessarily upon the intelligence, care, and fidelity of the servants to whom that duty was entrusted. If, in performance of it, the plaintiff was injured by reason of the negligent act of a fellow servant, although that fellow servant was the foreman or leader of his gang, it was one of the risks which he had assumed. Cuelen v. Norton, 126 N. Y. 1; 2 Baily on Personal Injury, sec. 2993, &c.; Connors v. Hildon, 152 Mass. 598; Queke Steamship Co. v. Merchant, 133 U. S. 375.

The instructions given by the court upon the theory that Fogg was in any view of the case the vice-principal or representative of the defendant were erroneous.

The ninth instruction is objected to as erroneous and misleading, first, because whatever danger there was in handling a locomotive wheel was obvious, and there was no duty on the part of the defendant to w arn the plaintiff of risks that were obvious to one of his age and experience. It is the duty of the master to inform an inexperienced servant of dangers ordinarily incident to the service, and if he fails to do so, and the servant has no opportunity to learn of them, he will not be held to assume risks not obvious to one of his age, experience, and judgment. 2 Raily on Personal Injuries, sec. 2665. But this rule only applies where there is a danger known, or which ought to be known, to the master, of which the servant, on account of his youth or inexperience, is ignorant, and which he cannot reasonably be expected to discover by the exercise of ordinary care. Rooney v. Sewall, &c., 161 Mass. 153; Stuart v. West End Ry. Co., 163 Mass. 391, cited by Baily, sec. 2702.

The plaintiff had been working in this gang of laborers for about two and one-half months. The evidence showed that he had seen these very wheels rolled to the place where they were, and had used a crane in hoisting them upon edge when they were rolled there; that one of them had fallen and came near injuring the men who were handling it; that he had been informed of this occurrence before he was injured, and was present when members of the gang were discussing the danger of handling these very wheels by hand. He testifies himself that members of the gang said it was dangerous to move the wheels by hand, and that he thought so, too. Eren if it had been the defendant’s duty, in the first instance, to have warned him of the danger of moving such wheels by hand, having received such warning or knowledge from other sources, he was not prejudiced by its failure to perform its duty, and could not rely upon it as a ground of recovery for the injuries received by him. This instruction given upon this point was therefore erroneous.

Another objection to the instructions is that the court erred in leaving it to the jury to say whether the defendant was negligent in not instructing how such wheels could be handled so as to avoid danger, as it was not shown in evidence that any such method was either known to the defendant, or generally known or practiced in moving such wheels. The only evidence introduced as to a different method of moving such wheels was that of Duffy, who testified as to the practice of the Chesapeake & Ohio Rw-y., in its shops. This evidence, as we have seen, was not admissible, and there was therefore no evidence upon which to base so much of the instruction as submitted the question to the jury, whether the danger of handling them might have been removed by putting a piece of timber through the hub of the wheel.

Another question upon which the court gave instructions was as to the circumstances under which a plaintiff may recover for injuries done him after he has learned of the dangerous or defective condition of the premises or appliances, and continues in the service. Since this case was tried in the Law and Equity Court this question was carefully considered and passed upon in the case of the N. & W. R. R. Co. v. Ampey, cited above. There is nothing in this case rendering a further discussion of that question necessary. ¥e will content ourselves, therefore, by referring to the opinion of the court in that case for the principles which should guide the court of Law and Equity on that question upon the next trial.

It is also assigned as error that the verdict is contrary to the law and the evidence, but as a new trial will have to be ordered for the reasons already stated, it is unnecessary to consider that assignment of error.

The judgment of the trial court mast be reversed, the verdict set aside, and a new trial ordered.

Reversed.