Chesapeake & Ohio Railway Co. v. Hoffman

Keith, P., delivered the opinion of the court. While working as a mechanic upon a pier belonging to the — 63 — Chesapeake and. Ohio Hallway Conrpany, Hoffman sustained injuries for which he brought suit, and the jury rendered a verdict in his behalf for $2,500, subject to a demurrer to the evidence. Numerous rulings of the trial court were excepted to, and are now before us for review upon a writ of error awarded the railway company. The first error assigned is that the demurrer to the declaration was overruled by the trial court. The declaration is a lengthy one. The circumstances out of which the cause of action grew, and which it relates, are quite complicated, but we are of opinion that it meets all the requirements of proper jilea ding. It is sufficient to. apprise the adverse party of the ground of complaint, and states sufficient facts to enable the court to say upon demurrer that the jilaintiff is entitled to recover, if the facts stated are proved. Hortenstein v. Va.-Carolina Ry. Co., 102 Va. 914, 47 S. E. 966. With this general statement, we refer to the declaration itself without further discussion. We are of opinion that the demurrer was properly overruled. Two bills of exception are taken to the admission of testimony over the objection of plaintiff in error. The first is because the witness, Taylor, ivas asked by defendant in error: “In the usual course of jiulling down these cap sills was it, or was it not, the custom to support the cap sill in some way, or to support the purlin ?” To the asking of which question counsel for defendant excejited, on the ground that there was no appropriate allegation in the declaration under which the question could be asked, or the evidence admitted. But the court overruled the objection and permitted the witness to answer, who said: “Well, we use a block and fall on the end of these caps, after we had moved them over, to lower them down; but we didn’t tie the caps up and let them stay there, or anything of that kind; we just simply throw the — 64 — block and fall on the end of them to lower them down after we break the post from under them.” It is true that this specific act is not mentioned in tlie declaration, but the declaration does disclose that the work was being done upon a trestle, or pier, which constituted a part of the railway .company’s track; that the work involved demolition and construction, the taking out of decayed or insufficient parts and the substitution for them of sound and sufficient timbers; and the details of the method employed by tlie company in the performance of this work may properly be the subject of proof, although not specifically stated in the declaration; for the object of the declaration is not to set out all the facts and circumstances which are to he disclosed in the evidence, but merely to give to the defendant such reasonable information of tlie ground of complaint as will enable him fairly to present his grounds of defense. The second exception is to the action of the court in permitting counsel to ask defendant in error, who was a witness in his own behalf, whether he was capable of doing since he received the injury such work as be bad done theretofore. To this question counsel for plaintiff in error objected, because it would be to enable the witness himself to determine bis capability for work at the time of the trial when he should have by proof shown his present condition and the amount he was capable of doing before, and leave it to the jury to determine the effect of the injury. The ruling of the court, was, we think, correct. It would be straining to an unreasonable extent the doctrine which limits opinion evidence to say that a witness should not be allowed to express an opinion as to the extent and effect of an injury received upon bis capacity to labor. Certain it is that he is in a better position to know than anyone else can be, and as he testifies in the presence of the jury and is subject to cross-examination a? to all the conditions upon which his opinion is — 65 — founded, we cannot think that it was error to permit him to testify. The third bill of exception was because counsel for defendant in error were permitted to ask Hr. Hewby whether he had ever had any patients to come under his direct charge who had received an injury by reason of a blow on the head, to which the witness answered: “Oh, yes, sir.” Whereupon defendant in error, by counsel, asked the witness the following question: ‘What was the result in the other cases ?” Thereupon plaintiff in error, by counsel, objected, but the court overruled the objection and permitted the witness to answer; but before the answer had been given counsel for defendant in error withdrew the-question, saying: “It has occurred to us,your Honor,that we will not press that. We will withdraw it—his individual experience in that regard. We would rather withdraw the question than to give him any show of an appeal”; and the question was withdrawn. To the statement of counsel made before the court and jury, that they would rather withdraw the question than give the plaintiff in error any show of appeal, plaintiff in error excepted. A case which could be prejudiced or injuriously affected by a circumstance so trivial must be of an exceedingly delicate and sensitive nature, and must rest upon an unstable and insecure foundation. The fourth bill of exceptions is because defendant in error was allowed to ask the witness, C. C. Leake, who testified on behalf of the railway company: “What is the usual life ■ of timber exposed as that was—the same character of timber?” Plaintiff in error objected to this upon the ground that it did not refer to any charge contained in the declaration, 'and' was not relevant to any issue in the case; and after the evidence was concluded, but before the case was submitted to the jury, plaintiff in error moved to strike out' all the testimony of the witness, C. O. Leake, concerning the agé o'f pier Ho. B,' ¿nd the — 66 — life of the timber used in construction, thereof, because there was no allegation in the declaration under which it could be introduced, and the same was not relevant fe> any issue in the case. We are not prepared to say that the evidence was irrelevant; but in view of the uncontradicted testimony as to the condition of the timbers in that pier, we have no hesitation in saying that its admission could have had no such prejudicial effect upon the minds of the jury as to justify the court in reversing the judgment for that cause. However opinions may differ as to the probable life of the timbers in that pier, there could be •no diversity of opinion as to the fact that it was at the time of the accident and of the trial in large part utterly rotten and worthless. The wonder is that, with timbers apparently necessary to the structure in the condition in which they are shown to have been by the uncontradicted evidence in this case', the traffic of a railway company could have been moved over tracks laid upon this pier. The assignments of error based upon the four bills of exception which we have considered are not well taken. The fifth bill of exception is because, after the evidence had been concluded, the court- instructed the jury “that in estimating the plaintiff’s damages they may take into consideration his physical and mental suffering arising from his injuries received on the 18th day of October, 1906,. his loss of wages from the time he was prevented by said injuries from following such calling or business as he could have followed but for said injuries, and that the amount of damages should be reasonable and just to both parties, and should compensate the plaintiff for the loss of money which he would probably earn had not the injuries occurred.” The sixth bill of exceptions is to the action of the court in refusing certain instructions asked for by plaintiff in error. It will be observed that the instruction given and those refused were designed as a guide to the jury in the estimation — 67 — of damages. We are of opinion that the instruction given by the court correctly and sufficiently states the law to- enable the jury to apply the evidence in determining what would be just compensation to the defendant in error for the injuries which he had sustained, provided they were received as the result of the negligence of plaintiff in error. The railway company, after the evidence had been concluded, and the jury had been instructed, demurred to the evidence, and thereupon the jury found a verdict for $2,500, subject to the defendant’s demurrer to the evidence. The railway company, through its counsel, moved the court to set aside this verdict because of errors in admitting, refusing to admit, excluding and failing to exclude evidence; because the verdict was contrary to the law and the evidence; because of misdirection and erroneous instructions given to- the jury, and because the amount of damages awarded is excessive. It appears that Hoffman fell more than thirty feet; that he was rendered unconscious; that his arm was mashed, his head was hurt, his shoulder-blade was dislocated, and his ankle badly sprained; and that he had not' at the time of the trial recovered from these injuries. We think it plain that we cannot disturb the verdict as being excessive. It only remains for Us to consider whether or not the evidence was sufficient, considered as upon a demurrer, to sustain the verdict. In obedience to the statute, the railway company stated the grounds upon which it demurred to the evidence. It embraces, twenty-five specifications. To notice each of them specifically would be wearisome and unprofitable. In great part they are merely varying forms of the plea of not guilty. If there be no-evidence to establish negligence upon the part of the railway company, then the judgment should have been in favor of the-company, but in that inquiry we must be governed by the rule-which our statute (section 3484) prescribes' as to demurrers to evidence, which has been applied in cases so numerous and — 68 — varied as to render wholly unnecessary any effort to give it additional illustration. It is contended that section 162 of the Virginia Constitution does not apply to this case, because Hoffman, at the time he sustained the injuries of which he complains, was not engaged in the physical construction, repair or maintenance of the company’s roadway, track, or any of the structures connected therewith. The contention is that the work was one of demolition; but in this view we cannot concur. The pier was a part of the roadbed or track of the railroad. In the course of years the timber out of which it was constructed had decayed, and the pier or trestle had become unsafe. A large number of workmen were engaged in its restoration, and in the course of their duties it became necessary to remove rotten timber and to replace it with that which was sound—to demolish in order that they might rebuild. The ultimate object was the construction of a safe pier; a necessary incident was the removal or destruction of so much of it as had become unsafe. It would seem, therefore, that it was plainly within the terms of the Oonstitution. But it is said that, if section 162 of the Virginia Oonstitution applies to the facts of this case, it contravenes the provisions of section 1 of the Fourteenth Amendment to the Oonstitution of the United States, which prohibits any State from denying to any person within its jurisdiction the equal protection of the laws. It is conceded that the legislature may classify legislation, but that the classification must be upon a natural and reasonable basis. Reliance is placed upon the opinion of the Supreme Court of' the United States in the case of Gulf & S. F. Ry. Co. v. Ellis, 165 U. S. 155, 17 Sup. Ct. 255, 41 L. Ed. 666. In that case -a State s't'átúte imposing an attorney’s fee of $10 in addition to costs tipon railway corporations omitting tó: pay certain claims within a certain time after presentation, applying to no other corporations or individuals,' was'held to be — 69 — unconstitutional as denying to railways the equal protection of the laws. Mr. Justice Brewer, in the course of his opinion, says, that “the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, and in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground—some difference which bears a just and proper relation to the attempted classification— and is not a mere arbitrary selection. In the case of St. L. & San Francisco Ry. Co. v. Mathews, 165 U. S. 1, 17 Sup. Ct. 243, 41 L. Ed. 611, a Wisconsin statute making every railroad corporation liable for all property injured or destroyed by fire from its locomotives, and giving the railroad company an insurable interest in the property for its protection, was held to be constitutional and valid. “Such statute,” it is said, “neither violates any contract between the State and the railroad company, nor deprives the company of its property without due process of law, nor denies it the equal protection of the law.” In this case, railroad companies were legislated against as a class, and were placed upon a different footing from other persons in the community, but the classification was held to be a reasonable and proper one, and not resting upon an arbitrary distinction. In Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107, a law of Kansas making a railroad compány liable to an employee for the negligence or mismanagement of other employees or agents of the same company, was held not in conflict with the Fourteenth Amendment, and that it did not deprive the company of its property without due process of law or deny to it the equal protection of the laws. The court said, that “legislation which is special in its character is not obnoxious to the last clause of the Fourteenth Amendment, if all persons subject to it are treated alike, under similar circumstances and conditions, in respect both to the privileges conferred and the liabilities imposed.” — 70 — “The hazardous character of the business of operating a railway,” said the court, “would seem to call for special legislation with respect to railroad corporations, having for its object the protection of their employees as well as the safety of the public. The business of other corporations is not subject to similar dangers to their employees, and no objections, therefore, can be made to the legislation on the ground of its making an unjust discrimination. It meets a-particular necessity, and all railroad corporations are, without distinction, made subject to the same liabilities.” We think that the provision in our Constitution and the act of the legislature, putting it into operation, are not in conflict with the Constitution of the United States. There is no doubt that it is true, as plaintiff in error maintains, that an employee owes to himself the duty of caution and care for his own protection. This court has in numerous cases enforced this principle. As was said in Darracott v. C. & O. Ry. Co., 83 Va. 294, 2 S. E. 511, 5 Am. St. Rep. 266, it is the duty of an employee to use ordinary care to avoid injury to himself, for the company is under no greater obligation to care for his safety than he is himself, and he must inform himself, so far as he reasonably can, respecting the dangers as well as the duties incident to the service. And, in general, any negligence of an employee amounting to the want of ordinary care, which is the proximate cause of the injury, will defeat an'action against the company.” See Pittard's Admr. v. Southern Ry. Co., 107 Va. 1, 57 S. E. 561. The doctrine is well stated in Labatt on Master and Servant, sec. 332, that “a servant is not in the exercise of ordinary care, unless, at each stage in the progress of his work, he makes an effective use of his bodily and mental faculties, and observes as attentively as is reasonably possible under the circumstances the condition of the instrumentalities by which his safety may be affected, and the results of their operation by himself or — 71 — others, in so far as that operation may tend to subject him to danger.” We concede that the doctrine which requires the master to furnish a safe place to the employee in which to do his work does not control in this case, where the servant was employed in repairing an unsafe structure. The very object of his employment was to render secure a structure which had become dangerous, and his employment involving as it did the tearing down, in part, of an existing structure caused continued changes in his environment, which demanded constant care and caution upon the part of the employee to avoid injury. The evidence shows that the pier was extensive and complicated in its structure. A model was introduced during the course of the argument, which to the uninstructed presented only a wilderness of timbers, but which doubtless to the educated eye displayed an intelligent combination of correlated parts, mutually bracing and strengthening each other, so as to enable the completed structure to resist the strain and support the burden which was to be placed upon it. A number of men were employed, some below and some above. It was quite impossible for each one of those employees to be fully advised of what was done by his fellow-servant, or how the work of that fellow-servant, engaged in removing or replacing some one of the innumerable interdependent parts, might affect his own safety. It would have been a reasonable precaution, therefore, if the railway company, in order to safeguard its employees, had stationed some one whose duty it should be to overlook and direct the progress of the work, and to warn those engaged of impending danger. We shall quote from the declaration a description of the situation at the moment of the accident: Constituting a part of the trestle on which defendant in error was engaged, there was a heavy piece of timber, twelve inches wide, twelve inches thick and twenty feet long, commonly called a cap-sill, resting upon and supported, in part, by four upright propping posts, — 72 — placed under the same and extending thence to the ground, commonly called plumb-posts, for a distance of thirty feet. The cap-sill, resting upon said plumb-posts, fitted in between two other posts, one at each end of the cap-sill, also- called plumb-posts or end-uprights, and was fastened and affixed to said last mentioned plumb-posts or end-uprights by heavy strips of timber laid along both sides of said cap-sill, commonly called sash-braces, which in order to give reasonable necessary support to said cap-sill, of right should have been bolted or affixed to, on and along the sides of the said cap-sill, as well as to said last mentioned plumb-posts or end-uprights, but which the said defendant had negligently and carelessly left unbolted and insufficiently affixed to said cap-sill and extending across and beyond said last mentioned plumb-posts or end-uprights; that resting upon said cap-sill, at one end thereof, was a large, long and heavy piece of timber, twelve inches wide, four inches thick and thirty feet long, commonly called a purlin, which extended fifteen feet on each side of said cap-sill, which said purlin was supported at one end by a cap-sill similar to the one hereinbefore mentioned, or by some other means of support, and which said purlin, of right, at the other end should have been supported by being lashed up, or otherwise, but the defendant had negligently and carelessly left the said last mentioned end of the said purlin unsupported. That in repairing the trestle it became necessary, in consequence of its decayed condition, to remove and replace the first mentioned cap-sill, and the plaintiff was engaged in removing it; that the foreman or boss caused two of the first mentioned plumb-posts, by which in part said cap-sill was supported, to be removed and taken away, leaving only the two center plumb-posts remaining in position under the said cap-sill; that in order to remove said cap-sill it became necessary to disconnect it from the plumb-posts or end-uprights between which the said cap-sill fitted, to which it was fastened — 73 — or affixed by said sash-braces, and thereupon, in the discharge of his duty and in the usual and customary manner of disconnecting cap-sills from plumb-posts or end-uprights and in the plain view of the plaintiff, one of the other servants entered upon the work of, disconnecting the said cap-sill from the said plumb-posts or end-uprights by sawing in two' the said sash-braces at a point near to and outside of where the said purlin rested upon said cap-sill, and partly sawed in two the said sash-braces at the point above designated, and then called upon and requested the plaintiff, as he had a right to do, to complete the sawing in two of said sash-braces. Hoffman, at the request of his fellow-servant, took his place and commenced to complete the work upon which he was engaged. 'In the mean time, two of the plumb-posts which had supported the cap-sill upon which he was standing were removed, and when the sash-braces were severed, Hoffman’s weight superadded to that of the sill itself was more than the timber in its decayed condition would bear, and he fell and received the injuries of which he complains. In the course of Hoffman’s evidence he was asked: “Did you know the cap-sill was not supported at one end of it, as it has been testified it was not supported—I mean the purlin ? “A. Ho, sir, I did not notice the purlin at all, for the simple reason that this man, Mr. Harrell, had been working there a long time before I had, and had about twelve months’ experience, and I thought he would do the work right before we got together on it. “Q. Then Mr. Harrell was doing the work, and called on you before it was completed? “A. He started to do the work. And another thing, they didn’t notify me to take the plumb-post out. They never take them out to saw them off. “Q. You didn’t know the plumb-post had been taken out from underneath the cap-sill ? — 74 — “A. No, sir, that is something that is never done until the sash-brace is cut loose.” We think that there was evidence sufficient to g'o to the jury- and for them to say whether’ or not the railway company was guilty of negligence resulting in the injuries of which defendant in error sustained; and, if so> whether defendant in error, by his own negligence so far contributed to his injury as to bar his recovery.' It was a case, about which, upon both propositions, reasonable men might well differ, and in such cases it is settled law that the jury must decide the controversy. The judgment must be affirmed. Affirmed.