Moore Lime Co. v. Richardson's Adm'r

Buchanan, J., delivered the opinion of the court. Whilst working as a day laborer for the defendant company (plaintiff in error here), the plaintiff’s intestate received injuries which caused his death. This action was brought to recover damages therefor, and upon the trial a judgment was rendered against the defendant company. The first assignment of error is to the action of the court in giving certain instructions for the plaintiff, and the second in refusing to give certain instructions asked for by the defendant, and for modifying another. These assignments of error will be considered together. The objection made by the plaintiff that the bills of exception upon which these assignments of error are based are insufficient is not well taken. The bills of exception show that the defendant objected to each and all of the instructions given for the plaintiff, and also to the áction of the court in refusing to give the rejected instructions, and in modifying another instead of giving it as offered. They are in the usual form where the action of the court upon instructions is excepted to, and- are sufficient. — 332 — The objections made to the plaintiff’s instructions, numbered one, two, and seven, were abandoned in oral argument. The plaintiff’s instruction, numbered three, ought not to have been given. Although the jury may have believed all the facts upon which it was based, "Whitmer, who was aeting as the foreman or leader of the gang of hands of which the plaintiff’s intestate was a member when injured, was not the representative of the defendant company, but was a fellow-servant with the deceased. And for the same reason that the plaintiff’s instruction Ho. 3 should not have been given,' the eighth instruction offered by the defendant, and rejected by the court, should have been given. The evidence tends to prove that the defendant company was engaged in the business of quarrying limestone, burning lime, and in shipping both lime and limestone, at and near Eagle Rock, a station on the Chesapeake & Ohio Railway. It had a superintendent at that place who had the general control and management of its business. Rudisill, mentioned in the instruction as foreman, was employed by the company to “trim” or “head up” the barrels in which the lime was shipped, to keep the time of the gang of hands of which the plaintiff’s intestate was a member, put them at work each day, and to see that they did the work they were employed to do, which was to wheel wood to the lime kilns, to move cars on the switch to the points where they were to be loaded, and to load them. He also had the power to employ hands to work’ in that gang, and to discharge them. Whitmer, one of the gang, receiving the same pay and doing the same work as its other members, usually directed them when and where the cars were to be moved, and in doing this work it was the duty of the other members of the gang to obey him. On the day of the accident Rudisill was absent, and Whitmer directed the gang to move two cars standing on the switch to the platform where they were to be loaded, a distance of not less than fifty, nor more than one hundred and — 333 — fifty, feet, it would seem. After the gang had started one car-down the switch, toward the platform, Whitmer, leaving the plaintiffs intestate pushing that car, directed other members, of the gang to go back for the other car, which they did, Whitmer going with them, and, after starting that car,, they removed their hands from it and allowed it to move slowly down the switch, which was slightly down grade in the direction of the platform. About the time the car the decedent was pushing reached its destination it was overtaken by the rear car, the bumper of which struck the plaintiffs intestate, driving him against a link in the bumper of the car he was pushing, and inflicting the injuries of which he died. The deceased knew that Whitmer and other members of the gang had gone back for the rear car, but Whitmer did not warn him of its approach, as was frequently, if not usually, done under like circumstances. The deceased had been in the service of the defendant for five or six years, and had been warned not to walk behind the cars, when moving them, though it was a common practice to do so. The bumper on each car was about twelve inches long, and ten inches wide. The evidence also tended to show that if the deceased had been pushing the car on either side of the bumper he would not have been injured, as the end of the cars were separated from each other nearly two feet when the bumpers came together. The ground upon which it is claimed that Whitmer, who was a member of the same gang, doing the same work and receiving the same pay as the plaintiffs intestate, was not a fellow-servant is because he was exercising authority over the gang, or acting as leader or foreman in the work of moving the cars. That this sort of superiority did not make him a vice principal is clear under the decisions of this court. In the case of Richmond Locomotive Works v. Ford, 94 Va. 621, the question was whether the boss or foreman of a gang of hands (of which he was a member), engaged in moving locomotive wheels about the yards of the Locomotive Works, which was under the manage — 334 — ment of a superintendent, was a fellow-servant, or vice-principal. In that case it was Held that sucH a boss or foreman was a fellow-servant, and tHat His negligence was one of tHe risks wHicH tHe members of tHe gang assumed when they entered into tHe service, xt was said in that case that where the execution of work directed to be done by the master or His representative is entrusted to a gang of Hands, it is necessary that one of them should be selected as leader, boss, or foreman, to see to the execution of the work. This kind of superiority of service 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 from 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. THe manner of performing each of the various duties 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 the 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 assumed. Instructions numbered five and six given for the plaintiff were also erroneous. The case of the Richmond Granite Co. v. Baily, 92 Va. 554, cited by counsel to show that instruction Ho. 5 was a correct statement of the law does not do so. It is true that a similar instruction was given in that case, but it was ■expressly stated in the opinion of the court that it was not a correct statement of the law, though, under the peculiar facts of the case, the giving of it was considered Harmless error. Neither does the case of Michael v. Roanoke Machine Works, 90 Va. 492, relied on to show that the court did not err in giving instruction Ho. 6, do so. THat was a case where the — 335 — plaintiff had been temporarily ordered to leave his usual place of work, and to work in a place where there were dangers unknown to him, and of which no warning was given. In the case at bar the plaintiff’s intestate when injured was engaged in the work which he had been employed to do, and of whose dangers he had full knowledge, since he had been doing the same work for five or six years. Instructions must apply to the facts of the particular case. An instruction which may be entirely correct in one case may be wholly inapplicable to another. Instruction numbered four offered by the defendant company was properly rejected. An employee does not assume all the risks incident to his employment as is stated in the instruction, but only such as are ordinarily incident to the employment. Bertha Zinc Co. v. Martin, 93 Va. 791; 3 Elliott on Railroads, sec. 1288. The action of the court in refusing other instructions of the defendant is assigned as error, but as the judgment complained of must be reversed for other errors it is not necessary to pass upon them as they are not likely to arise upon the next trial. The next question to be considered is whether the defendant company, as the plaintiff insists, was guilty of negligence in not adopting and publishing safe and proper rules for the regulation of its business. One of the positive duties of a master is to adopt rules for the protection and safety of his employees, where he is engaged in a complex business which requires definite rules for their protection, and a failure to do so is such negligence as renders him responsible for all injuries resulting therefrom. Wood on Master and Servant, sec. 403; Morgan v. Hudson River Ore & Iron Co., (N. Y.) 31 N. E. R. 234. The evidence tends to show that the defendant had not adopted and published rules regulating the manner in which the cars were to be moved. The cars were left on the railroad siding to be loaded, and had to be moved a short distance, as we — 336 — have seen, on a slight down grade to the point where they were to be loaded. They were not moved by steam, bnt by the strength of the gang of hands. The work was neither complex nor difficult. It is not shown that there was anything in the nature of the work which made it necessary for the defendant to enact rules. Its failure to do so was not proof of negligence, unless it appeared from the nature of the work in which the servants were engaged (and it does not) that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity for such rules. Morgan v. Hudson River Ore & Iron Co. (N. Y.), 31 N. E. R. at p. 236. The third assignment of error is to the action of the court in refusing to permit the defendant company to introduce certain evidence, because it was evidence which ought to have been offered in chief. As the judgment has to be reversed upon other grounds and a new trial ordered, it is unnecessary to pass upon this question, as it is not likely to arise upon the next trial. For the foregoing reasons the judgment complained of must be reversed, the verdict set aside, and a new trial awarded to be had in accordance with the views expressed in this opinion. Reversed.