Virginia & Southwestern Railway Co. v. Bailey

49 S.E. 33, 103 Va. 205, 1904 Va. LEXIS 28

• Court: Supreme Court of Virginia
• Decided: November 23, 1904
• Status: Published

Opinion

Keith, P.,

delivered the opinion of the court.

D. H. Bailey, the plaintiff in the court below, was a locomotive fireman in the freight-train service of the Virginia & Southwestern Railway Company. On the 16th day of April, 1903, the crew to which he belonged started from Bristol to Big Stone Gap, and arrived at Clinchport, an intermediate point, some time during the night of that day. At Clinchport the crew received orders to shift some cars which were standing on a siding. The engine and tender were accordingly cut loose from the train at the depot, and all of the crew except the fireman went with the engine to do the shifting.

The switch is situated several hundred yards west of the depot, and at the point of the switch there is a railroad bridge, on the main line, over Stock Creek. This bridge is 263 feet long; its eastern end is about 111 feet from the depot, and its western end is 482 feet from the point of the switch. The total distance from the depot to the switch is 1522 feet. The bridge is about 28 feet hight at its highest point. Upon this switch there was a train of cars, about twenty in number. The purpose of the switching to be done by the crew was to change the position of these cars so as to place one of them which stood near the west end of the cars on the switch track, to the rear, or east end, in position to be loaded. To accomplish this change of position, all the cars on the switch had to he moved iand placed on the main line near the depot, and then replaced on the siding.

After placing the car, which was to be set on the rear end of the switch, next to the engine, the crew proceeded to remove the remaining cars from the switch, and pnt them down on the main line below the point of the switch. Rrom the point of the switch on the main line to the other end of the switch was a down grade, so that all of the cars conld not be brought out at once, but several pulls had to be taken at them. At first abont eight or ten cars were brought out and placed on the main line. Conductor Brown was actively engaged taking the full part of a trainman while this was being done, and it appears that he attended to opening and shutting the switch, while Brakeman Campbell rode on the cars and uncoupled them on the main line, cutting them off on this first pull between the car next to the engine, and the residue of the cars. Then holding on to the ear next to the engine, they went back into the switch and brought out another set of cars, which were pushed down on the main line below the switch, Campbell again cutting them off so as to leave the car next to the engine still coupled thereto. When they had cleared the switch, they dropped the car which they had been holding on to down on the far end of the switch track, and then proceeded to replace the other cars back on the siding. After they had replaced all the cars except those first brought out, which would consequently be the last put in, just before starting back with the engine and tender from the switch track for this last pull from the main line, a conversation occurred between Brown and Campbell, as to the substance of which there is a difference between them, and which was not heard by the engineer or fireman. Brown says that he either told Campbell, or that Campbell suggested to him, that he, Campbell, would go across to the cars on the main line if Brown would take the engine around, and that the two reached this understanding. Campbell says that he told Brown he would go across the bridgeway (a foot bridge across Stock Creek between the main line and the switch) to the main line, and see if all the cars standing there were coupled together, and that this understanding was reached between them. At any rate, Campbell did go across to the main line, and Brown did cut the engine and tender loose, go up to the switch, out on the main line, and back down on the main line with the engine and tender for the last draft of cars. Campbell, who had ridden the cars, had cut the engine and one car loose when the first draft had been placed on the main line. In cutting them off, it so happened that they were left partly on and partly off of the bridge, two gondola cars and half of a box car projecting out on the bridge, and the balance of the draft coupled thereto standing east of the bridge. As Brown went back for the last draft of cars, he rode on the rear end of the tender for the purpose of giving the engineer signals for the coupling, and, as he claims, expected to find Campbell at the end of the cars with his light. He saw Campbell’s light at the end of the bridge, and did not signal the engineer to slow down until he got close enough to see the end of the gondola by the light which he himself carried in his hand; in other words, he reached the end of the cars in a shorter distance by the length of two gondolas and half a box car than he expected. The engineer in moving the engine was being guided by the signals given him from Brown’s lamp, and was also being influenced in the speed at which he was running by the position of Campbell’s light, although his statements and Brown’s upon this subject do not entirely correspond. It seems, however, that the cars were closer to the engine and tender than either Brown or the engineer supposed, and notwithstanding Brown’s signal to the engineer immediately upon discovering them, the coupling was made at a greater rate of speed than would have been used had they known their exact location. The automatic coupling was made successfully, nothing was broken, and neither the brakeman, conductor, nor engineer, thought that anything very unusual had happened. The plaintiff testifies, however, that he was standing on his side of the engine looking for signals, and getting ready to fire his engine, and not expecting the coupling to be made; and that when the engine and cars came together, he was knocked out of the engine, and fell to the bottom of the bridge, landing in the creek and sustaining severe injuries. The fact that he had fallen was not discovered by any of the crew until they had gone back over the switch with the last draft of cars.

From this statement of facts, it will be seen that the real point in controversy is whether or not Brown, the conductor, knew, or ought to have known the position of the cars to which he was to couple the engine, and whether or not the rate of speed at which the engine was moving under his direction was. such as to constitute negligence.

The jury rendered a verdict for the plaintiff, which the court refused to set aside, and the defendant in the court below, plaintiff in error here, the Virginia & Southwestern Railway Company, having obtained a writ of error, assigns the following-grounds for the reversal of that judgment.

The plaintiff was asked, as a witness in his own behalf:

“Q. If the coupling had been made in the usual or ordinary way, would you, or would you not, have been thrown from the cab ?

“A. FTo, sir,, if they had been coupled in the right manner, I would not have been thrown out.”

To this question and answer there was a general objection which the court overruled. It is claimed in the petition that while the objections relied upon do not appear in the record,*the question and answer were wholly inadmissible for any purpose.

It may be that the question is obnoxious to the objection that it is a leading one, and that the answer expresses the opinion of the witness and not a fact. Without deciding whether or not either of these objections is well taken, or whether in any event it would constitute reversible error, we shall content ourselves with calling attention to the fact that at another point in the testimony of the plaintiff, this question was asked him:

“Q. How did they throw you?

“A. I went out head foremost. It ivas an unusual lick. If it had been hit by a lick that cars ought to be coupled, it wouldn’t have throAvn me. I had hold and Avas looking out for it, and always did look out for anything like that when Ave was shifting.”

This question and ansAver Avere not objected to, so that if the error under consideration was sustained, there would still be evidence in the record covering the identical point, to AAdiich no objection was made.

Objection is also made to the ruling of the court, refusing to alloAV the plaintiff in error to prove by the Avitness, BroAvn, that it Avas not his duty as conductor to gives his brakeman, Campbell, any detailed instruction about going to the end of the cars to which1 the coupling in question was to be made; and a like offer of proof Avhich occurs in the testimony of the Avitness, McCue, which was also rejected by the court.

If the refusal to permit plaintiff in error to introduce the evidence referred to was erroneous, the error was cured by instruction 6 given at the instance of plaintiff in error, in which the court told the jury that the conductor had the right to presume that his brakeman, Campbell, was acquainted with the usual and customary method of performing his duties, and it Avas not the duty of the conductor to give him special instructions with reference thereto. The plaintiff in error could not have been prejudiced by the ruling of the court excluding eiddence tending to show that it was not the duty of the conductor to do a particular act, when the point was covered by an instruction of the court which states that as a matter of law no such duty devolved upon him. We refrain from any expression of opinion upon either ruling of the court involved in this assignment of error, except to observe that in the result there was clearly no prejudice to the plaintiff in error.

Another objection taken to the exclusion of testimony is to the refusal of the court to permit McCue, “an experienced railroad man,” to prove that it was not the duty of the conductor to know exactly where the cars were left that were being shifted.

There had been direct evidence that it was the duty of the conductor to know. It was proved that the company had no rule upon the subject; and McCue was expected to testify from his general information with respect to the operation of other roads. He was asked this question: “Where, as in this case, the conductor was attending to the shifting of the cars and also to the switching, would it or not be his duty to know the exact place where the cars had been left to which he was going back to couple?” To which question and any answer thereto, the plaintiff by counsel objected, and the court sustained said objection, and refused to allow the witness to answer. Thereupon, without any distinct avowal by counsel for defendant, the court understood from the question and general drift of the examination that, if permitted to do so, the defendant would prove by the said witness McCue, that in general railroad practice, it would not be necessary or incumbent upon the conductor to give specific directions to the brakeman to go with his light to stand at the end of the train for the purpose of assisting in making the coupling, but that, according to general railroad rules and practice it would be considered by the conductor that the brakeman would know that it was his duty to go to the end of the cars with his light, without being specifically told so to do, and that where, as in this case, the conductor was attending to the shifting of the cars, and also to the switching, it would not be his duty to know the exact spot where the cars had been left, to which he was going back to couple. But the court, notwithstanding said statement of counsel, refused to allow the said witness to answer the above questions, and refused to allow the defendant to prove the facts set forth in the above statement of counsel.

So much of this exception Eo. 3 as refers to the duty of the conductor to give specific directions to the brakeman has already been sufficiently disposed of in discussing the assignment of error with reference to the question asked Conductor Brown; and as to so much of it as has reference to the duty of the conductor to know the exact place where the cars had been left, it is to be observed that the gravamen of the charge of negligence upon the part of the conductor is that he permitted the engine to approach at a dangerous speed the cars to which the coupling was to be made, and that it was his duty to know, not the exact position of those cars, but to have such a reasonable knowledge of their situation as would have enabled him to make the coupling with safety. ' The question in terms asks the witness, would it or not be the duty of the conductor “to know the exact spot at which the cars had been left to which he was going back to couple.” To this question the witness would have made the categorical answer, that “it was not his duty to know the exact spot,” an answer which would have been, or might have been, absolutely true as a response to the question in the precise terms in which it was propounded, and yet have been utterly misleading.

The action of the court in allowing the witness, Skeen, to testify as to the expectancy of life of a man of the age of defendant in error, and in allowing the introduction before the jury of certain mortality tables, is assigned as error.

The expectation, of life of the defendant in error was one of-the factors to be considered by the jury in ascertaining the com-' pensation to be given him for a permanent injury. The expectation of life is of course incapable of exact ascertainment. All-that can be done is to place before the jury the best evidence' obtainable, to be considered by them under the direction of the' court. Tables of mortality are usually esteemed the safest guides upon the subject, to be taken by the jury and weighed along with other facts and circumstances applicable to the expectation of the particular life under consideration. It is the best method of dealing with the subject of which the nature of the case admits.

The instructions asked for by the plaintiff and given by the court correctly state the law. Indeed, no objection is urged to any of them, except Ro. 4, which relates to the measure of damages, and which has been sufficiently disposed of in dealing with the admissibility of the testimony of the witness Skeen.

The defendant asked for several instructions, all of which were given, except Ro. 8. Ros. 5 and 6, however, were modified by the court. As originally asked, Ro. 5 was in the words following :

“The court instructs the jury that if they believe from the-evidence that it was the duty of W. R Campbell, the brakemanr under the circumstances in this case, to have gone with his lam-tern to the end of the car to which the engine was going t'cf couple, and that he failed to go to the end of said car, and that the accident to plaintiff resulted from such failure of said brakeman to perform such duty, they will find for the defendant.”

The modification consisted in inserting the word “solely” after the word “resulted,” so as to make it read, if “the accident to plaintiff resulted solely from such failure of said brakemare to perform such duty, they will find for the defendant.”

The purpose of the amendment is obvious. There was evideuce tending to prove negligence upon the part of the conductor, who was not the fellow-servant of the defendant in error, but was as to him the vice-principal. There was evidence tending, to prove negligence upon the part of Campbell, the brakeman, who was the fellow-servant of defendant in error. If, therefore, the negligent act which caused the injury was due solely to the misconduct of the fellow-servant, the railroad company was not responsible; but if the misconduct of the vice-principal entered into and constituted a part of the negligent .act which caused the injury, $ien the courts will not undertake to distribute the fault, but will hold the railroad company responsible as though it alone were guilty. N. & W. Ry. Co. v. Nuckols, 91 Va. 193, 21 S. E. 342.

The same principal controls the amendment introduced by the court in the second branch of this instruction, and we are of opinion that the amendments made by the court were proper, and this assignment of error is overruled.

The court also, of its own motion, gave an instruction which we think is, under the evidence in this cause, plainly right, and the objection to which is, therefore, overruled.

This brings us to the consideration of instruction Bo. 8 asked •for by the defendant, and refused by the court. It is as follows:

“The jury are further instructed that although they may believe from the evidence that it was the duty of Conductor Brown to know the location of the cars that he was going back to couple to, and that he neglected this duty and did not know the location thereof, yet if they believe from the evidence that said conductor believed, and, under all the circumstances of this case, had the right to believe, that Campbell, the brakeman. would be, with his lantern, at the end of the car to which they expected to couple, and further believe that if said Campbell had been at the end of said car with said lantern, the accident would not have occurred, they will find for the defendant.”

This instruction is predicated upon the concession that it was the duty of Conductor Brown to know the location of the cars he was going to couple to, and that he neglected this duty; and rests the defense upon the ground that the fellow-servant was guilty of negligence.

As we have already seen, if Brown, who was the vice-principal, was guilty of a fault which entered into and constituted a part of the negligence which resulted in the injury of the plaintiff, then the railroad company is responsible, although Campbell, the brakeman, who was a fellow-servant, was also in fault, the court in such cases holding that where injury to a servant has been caused by the fault o.f a fellow-servant, concurring with the negligence of the master, the latter is liable as though he only was at fault. The fault of this; instruction is that it is predicated upon the concurring negligence of the conductor, who was the vice-principal of the master, and of a fellow-servant.

There was a motion to set the verdict aside as contrary to the evidence, which was properly overruled. The testimony, considered as upon a demurrer to evidence, establishes the negligence of the plaintiff in error as being the proximate cause of defendant in error’s injury.

The motion in arrest of judgment was also properly overruled.

There was no demurrer to the declaration, and we are not prepared to say that it could have been adjudged insufficient had a demurrer been interposed. If the declaration was less specific in its allegations of negligence than it should have been, we are still of opinion that a judgment upon it should not be arrested. Concede that the evidence went beyond the averments of the declaration, yet it is apparent that the plaintiff in error has suffered no prejudice upon this account, but that it presented its entire case to the jury. The objection should have been made by the defendant when the infirmity, if it exists, was disclosed. It should not have waited until a verdict had been rendered. If the objection had been made during the trial the court, if it considered that substantial justice would have been promoted, and that the opposite party would not have been prejudiced thereby, would have allowed the pleadings to be amended on such terrosas is deemed reasonable. Code, sec. 3384. The observations of Judge Buchanan in the case of Bertha Zinc Co. v. Martin, 93 Va. 601, 22 S. E. 869 are equally applicable here. ‘“If there was such a variance as that complained of, the objection ought to have been made in the trial court either by objecting to the evidence when offered, or by a motion to exclude after the evidence had been received. Section 3384 of the Code'was enacted to obviate the difficulties which frequently arise after a trial has been commenced, when it appears that there is a variance between the evidence and allegations in the pleadings, by allowing the pleadings to be amended upon such terms as to continuance and costs as the court may deem reasonable, or by directing the jury to find the facts, and after such finding, if the court be of opinion that the variance was such as could not have prejudiced the opposite party, it gives judgment according to the right of the case.

“The objection now made for the first time should have been made in the court below, so that the plaintiff in that court might have had an opportunity to have moved the court to have adopted the one or the other of the courses provided by the statute. Having failed to do this, we do not think that the question can be raised here for the first time, and this assignment of error must be overruled.”

In that case it appears that the objection was made for the first time in this court, while in the case before us it was made in arrest of judgment. The difference is one of degree rather than of kind. The point is, that it should have been made, in the language of Judge Buchanan, “when the evidence was offered, or by a motion to exclude after the evidence had been received.” It is manifest that the plaintiff in error has suffered no prejudice in the trial court, that it made a full defense, and that the judgment has been rendered according to the very right of the case.

We' are of opinion that there is no error in the record for which the judgment should be reversed.

Affirmed.