New York, Philadelphia & Norfolk Railroad v. Wilson's Administrator

Keith, P., delivered the opinion of the court. Passenger train No. 49 of the New York, Philadelphia and Norfolk Eailroad Company ran into the rear of a freight train on that road, the collision resulting in the death of Wilson, the fireman upon the engine of the passenger train, and this suit was brought by his administrator to recover damages. There was a verdict and judgment- for the plaintiff. During the progress of the trial certain exceptions were taken to rulings of the court, which are now before us for review upon a writ of error. The evidence tends to prove that, on the 10th of April, 1906, a freight train consisting of an engine and twenty cars was moving south upon the roadway of plaintiff in error. Near Hailwood station the engineer discovered that his engine had a hot box, and his flagman was at once dispatched to notify passenger train No. 49 of the fact. The flagman had instructions to flag the train, to stop it and to inform the engineer upon that train of what had occurred upon the freight train. The flagman went back a sufficient distance, and using a red lantern as a signal flagged passenger train No. 49, brought it to a stop and delivered his message. The proof is that at the time there — 760 — was quite a heavy fog, hut, notwithstanding that fact, the signal with the red lantern was observed and obeyed by the engineman upon passenger train Ho. 49. Both trains on this single track were moving southward in the direction of Cape Charles, the terminus of the road, and it appeal's from the evidence that the train dispatcher at Cape Charles notified the engineman on passenger train Ho. 49 of the trouble with respect to the hot box upon the freight train, and the telegram giving this information was found upon the person of Parker, the engineman, after his death, he also having been killed by the collision which subsequently occurred. After leaving Hailwood, and as it approached .Exmore, a station 29 miles distant, a coupling on the freight train gave way and the train parted. It was speedily halted, and the flagman, who was in the caboose, was at once sent to the rear to give.warning of the situation. His testimony is that when he left his train and got upon the ground he could hear Ho. 49 approaching. He ran as rapidly as he could back al'ong the railroad for a distance of eight telegraph poles, or 48'0 yards, waving his red lantern across the track, and continued to wave it until the passenger tr'ain had approached so nearly that he was compelled to stand aside to escape being run over. The engineer did not acknowledge his signal or diminish the speed of the train, but rushed by, with the result that his engine collided with the rear of the freight train, and both the engine-man and his fireman were killed. There is evidence tending to prove that both trains had been inspected that morning; that their couplings and appliances were such as complied with the rules of the Interstate Commerce Commission and with the rules in the United States for standard couplings; and that, so far as was disclosed by recent and careful inspection, all of these appliances were in good order. The rules of the company prescribe that flags of the proper color must- be used by day, and lamps of the proper color by — 761 — night, or whenever from fog or other cause the day signals cannot he clearly seen; that red signifies danger, and is a signal to stop; that an explosive cap or torpedo placed on the top of the rail is a signal to he used in addition to the regular signals; that the explosion of one torpedo is a signal to stop, the explosion of two torpedoes not more than two hundred feet apart is a signal to reduce speed and look out for a danger signal; that a fusee is an extra danger signal, to he lighted and placed on the track at night, in cases of accident or emergency; that a train finding a fusee burning upon the track must stop, and not proceed until it has burned out; that a lamp swung across the track is the signal to stop; and rule 78 provides, that “all signals must be used strictly in accordance with the rules, and trainmen must keep a constant lookout for signals.” Rule 99 provides, that “when a train stops or is delayed, under circumstances in which it may be overtaken by a following train, the flagman must go hack immediately with danger signals a sufficient distance to insure full protection. When recalled, he may return to his train, first placing two torpedoes on the rail when the conditions require it.” When the flagman went back on this occasion, he had with him a red lantern, as already stated, and torpedoes, but ¡no fusees. The evidence is that the passenger train was running at between thirty and forty miles an hour. At thirty-five miles an hour, the train would have covered the 480 yards between the point at which the flagman made his signal and the rear of the freight train in 28 seconds. The first assignments of error are to the rulings of the court in admitting certain testimony over the objection of plaintiff in error, as set forth in bills of exceptions IsTos. 1 and 2. A witness, O. H. Ames, was introduced on behalf of the defendant, and testified as follows: . “Q. Did you get off the train when the accident occurred? A. Yes, sir. “Q. Was it foggy there? A. Yes, sir. — 762 — “Q. Was it just as foggy as it was at Keller ? A. It was later and lighter. “Q. The same conditions prevailed there as at Keller? A. The day was lighter. “Q. Was the fog as heavy? A. Yes, sir. “Q. Was it possible with the conditions that prevailed at the place where the accident occurred to see any kind of light very far?” To which question defendant, by counsel, objected; but the court overruled the objection and allowed the witness to answer the question. “A. Do you want me to specify some distance ? “Q. We want you to specify how far you could see a light.” He was then asked: “Will you please state at what distance you think it possible to have seen the lanterns used ordinarily by the railroad company, if you know what they are, as signal lights ?” “A. I should not think you could see it very far—the length of the car.” To which ruling of the court in allowing the questions to be asked and answered in the connection in which they were asked, the plaintiff in error excepted. The bill of exception assigns no reason why the answer should have been excluded. Its object was to get from the witness an opinion as to how far, under the conditions which existed, the signal given by a red lantern could have been observed on the occasion in question. This is not a matter of expert knowledge. It is a matter of opinion, it is true, resting on common experience, the value of which must be determined by the jury, which has the witness before it and can form some idea of the weight to be attached to his evidence. In this ease, the witness was upon the train on the morning of the accident. He saw the fog and the lanterns, and was able to give some idea of the distance at which the light of the i-ed lantern in use by railroads on such occasions could be seen. — 763 — We think, therefore, that the questions. and answers were proper; but even if they were not, we should be indisposed to attach to them such importance as to make them the ground of reversing the judgment. The second bill of exceptions is to the testimony of James Driscoll. The questions which he was asked were as follows: “Q. From your knowledge and experience as a railroad man, do you feel qualified to speak as to the running of trains and the use of signals? A. Yes, I think so. “Q. I would ask you what are the danger signals ordinarily used by railroad companies? A. Red flag by day and red lamps by night, and also they use torpedo and fusee. The torpedo can be used in the day time and also at night, and the fusee especially goes at night. “Q. What is a torpedo? A. It is something about the size of a silver dollar, and has two straps to it about two inches long of soft metal. I don’t know what the metal is made of. In case of danger, this is a special danger signal used. This torpedo is placed on the rail. One means to stop still, and for the engine not to go any further. It explodes in a terrible way, and that means to stop there. Two placed one rail length apart is a signal to proceed on, and to look out, danger ahead. “Q. How long does it take to fix or apply a torpedo to the rail ? A. You can almost place it as quick as the hand can be used. The metal is very soft, and the rail has the over projection, and you slip it on as quick as that. “Q. What is a fusee? A. It is a piece about that long, and it has an explosive to the end of it, and it has a piece of steel about that long. They are kept where you can put your hand on it, and you can strike it so, and you can throw it so (indicating), and it bums ten or fifteen minutes. It bums a large red light. The smoke goes up, and is a danger signal, and that means stop and not move until that bums out. That is another extra danger signal used by railroad men. “Q. Did I understand you to state how high a fusee burns ? — 764 — A. It burns tremendous high, and the smoke casts a large red light. I could not tell just how many feet it would show in the elements from the ground up, but it is a tremendous big light.” To this examination plaintiff in error excepted, and assigns the ruling of the court upon it as error. It appears that Driscoll had been in the railroad business for a> number of years, as brakeman and engineer, and was therefore qualified to speak and to give his opinion upon the subjects with reference to which he testified. But even if this were not so, the same facts were proved, without objection, by another witness, and we are of opinion that this assignment of error is not well taken. When the evidence was concluded, the defendant in error asked for certain instructions, all of ■which were given; and while they were excepted to in the trial court, there is no assignment of error with respect to them. Plaintiff in error also asked for certain instructions, marked “A,” “B,” “C,” “D,” “E,” “F” and “Gf.” The court gave “A,” “B,” “D” and “E”; refused to give instruction “0” as asked for, but gave it with an amendment; and wholly rejected instructions “F” and “Gf.” Instruction “C,” as asked for, told the jury, that if they believed “from the evidence that the plaintiffs intestate did not use ordinary care, by keeping a faithful and proper lookout for danger signals on the right of way and track, then he contributed to his death, and is precluded from recovering in this action, although the defendant company may be chargeable with negligence also.” The court added to it these words: “provided they believe from the evidence such a lookout would have prevented the accident.” The fact that his intestate was injured does not entitle defendant in error to recover. He must show that the injury was the result of negligence upon the part of the railroad company. The duty of the railroad company was to usé reasonable — 765 — care to give proper warnings of the danger which threatened the train upon which plaintiffs intestate was an employee. If that was done, then it had discharged its duty, and if for any cause the signal was not observed, that was no fault of the railroad company. If the failure to observe the signal was due to inattention upon the part of plaintiffs intestate—to his failure to keep “a faithfnl and proper lookout,” as it was his duty to do—of course, there could he no recovery. But suppose the railroad company discharged its duty, could it he made answerable to the plaintiff, although his intestate, without any dereliction of duty upon his part, failed to see, or was unable to see, a proper and sufficient signal of danger? We think that instruction “0,” as asked, correctly stated the law; that the proposition contained in the qualification attached to it had already been sufficiently covered by other instructions, and that attaching it to instruction “C” tended to mislead the jury, and was erroneous. This brings us to consider instructions “E” and “G-.” It appears from the evidence and from the instructions asked and given at the instance of defendant in error, that the conflicting theories of plaintiff and defendant in the court below were as follows: The theory of plaintiff, defendant in error here, was that, under the circumstances as they existed immediately before and at the time of the collision, when the flagman went back up the track to stop passenger train Ho. 49 it was his duty to take with him not only the red lantern hut torpedoes and fusees; to go hack as far as he safely could under the circumstances, and attach a torpedo and a fusee to the track in the proper manner. This theory of the case is presented in instruction Ho. 1. The theory of the defendant, plaintiff in error here is that the danger signal provided by the.rules and in customary use on such occasions is the red lantern at night; that the proper use of the torpedo and fusee is to put them upon the track as a warning to a following train when the flagman has been recalled by a signal from his own — 766 — train; and this is the theory presented by Instructions “F” and “G-.” It will be recalled that the testimony of the flagman tends to prove that he went as rapidly as possible to the rear, arid as far as he could go with safety; that he waved his red lantern as a signal, as he had done a very short time before at Hallrvood station; that the conditions at Hailwood and at Exmore were substantially the same; that he met the on-coming passenger train at a distance of 480 yards from the rear of the freight train; that it was running at a rate of 35 miles an hour; and that he had no time to put down a torpedo or a fusee. And when it is recalled that a train going at that rate of speed would cover the distance of 480 yards in 28 seconds, and that if he had stopped a sufficient length of time before meeting the passenger train to have attached the torpedo or fusee to the track, it avouM have resulted in his giving a signal at a) distance short of 480 yards from the rear of the freight train by so much space as avouM have been covered by the passenger train while he was placing the torpedo or fusee; we cannot say that the flagman, confronted with these difficulties, judged unwisely in confining himself to giving the signal with the red lantern. As a matter of fact, he did not have the fusee with him, but that we presume does not affect the situation; for if that was, under the circumstances, the only proper signal to have been given, then he was not in the exercise of reasonable and proper care in not srrpplying himself with them. As the court told the jury in instruction “E,” it was. the duty of plaintiff in error to exercise reasonable care for the safety of its employees; but it was not bound to use more than ordinary care no matter how hazardous the business in which the employee was engaged. There being evidence, then, tending to show that, under all the circumstances, a signal Anith a red lantern woujd have satisfied the obligation of plaintiff in error, the instructions in question should have been given. In Richmond Traction Company v. Martin’s Admr., 102 — 767 — Va. 209, 45 S. E. 886, Judge Whittle says, that “where two theories of a case are presented by the evidence, upon one of which the jury has been sufficiently instructed, it is error to refose an instruction based upon the other'theory of the case, which if sustained would require a different verdict, or to add to such an instruction a qualification which would withdraw from the jury the consideration of the last mentioned theory.” And in Richmond Passenger, &c. Co. v. Gordon, 102 Va. 498, 46 S. E. 772, Judge Buchanan says: “AVhere there is' evidence tending to prove that the injury sued for was caused by the concurrent and co-operative negligence of both plaintiff and defendant, and also evidence tending to prove that the defendant’s negligence alone was the proximate cause of the injury, each party has the right to have his view or theory of the case presented to the jury by proper instructions for that purpose.” See also Phillips on Instructions to Juries, sec. 101, and cases there cited. AVe are of opinion that the judgment of the circuit court must be reversed, and a new trial awarded. Reversed.