Chesapeake & Ohio Railway Co. v. Swartz

Whittle, J., delivered the opinion of the court. For convenience the defendant in error and the plaintiff in error will b'e called, respectively, plaintiff and defendant. The second amended declaration contained seven counts, and there was a demurrer to the declaration as a whole and to each count. The circuit court sustained the demurrer to the fourth count and directed the jury to disregard the seventh count, and overruled the demurrer to the other five counts. (1) The first and second grounds of demurrer to each of the remaining counts are that plaintiff assumed the risk of the alleged injury and was guilty of contributory negligence. — 729 — Assumption of risk and contributory negligence are matters of defense, and the fact that a plaintiff has not assumed the one or been guilty of the other need not be averred. It is nevertheless true that where a declaration affirmatively shows that the plaintiff has assumed the risk, or been guilty of contributory negligence, it will b'e held bad on demurrer, but that is not predicable of this declaration. Penn Foundry Co. v. Probst, 114 Va. 264, 76 S. E. 323. The third ground of demurrer is that the third and fifth counts show that the alleged injury was occasioned by the action of fellow-servants of plaintiff. The gravamen of the averment in each of these counts is that the hostler in charge of the engine, discovering that he could not uncouple the engine from the train, as it was his duty to do, until it was backed sufficiently to give the necessary slack, with knowledge that the attached train was protected by blue lights, and without warning to the plaintiff, who was at work under the car nearest to the tender, negligently passed an order to the fireman to back the engine for the purpose indicated, which was done in such a careless, reckless and unskillful manner as to occasion plaintiff’s injury. By the express terms of section 162 of the Constitution of Yirginia a railroad employee is declared not to be the felloAV-servant of a coemployee in charge of a locomotive engine. The fourth ground of demurrer is that neither the declaration, nor any count thereof, shows the neglect by the defendant of any duty laAvfully owing by it to the plaintiff, or any actionable negligence on the part of the defendant. To the contrary, it is alleged that the relation of master and servant existed between the parties, and in varying from the duty owing from the master to the servant and — 730 — the negligent breach of such duty, the defendant was guilty of negligence. Hortenstein v. Va. Carolina R. Co., 102 Va. 914, 47 S. E. 996; Cedar Works v. Dalea, 109 Va. 237, 64 S. E. 41. The fifth ground of demurrer is that the first'and second counts do not set forth the matters discussed in the last preceding assignment with sufficient particularity and clearness to enable the defendant to understand the nature of the charge which it was called on to answer. It is an established rule of practice in this jurisdiction that where a declaration states a good cause of action, and the defendant desires a more particular statement of the grounds of complaint, he should demand a bill of particulars under section 3249 of the Code. Interstate R. Co. v. Tyree, 110 Va. 38, 65 S. E. 500; Washington-Virginia Ry. Co. v. Bouknight, 113 Va. 696, 75 S. E. 1032. The sixth and last ground of demurrer is that the material allegations of the second count are self-contradictory and repugnant. This ground is not well taken. The count substantially alleges that the accident was occasioned by the negligent failure of the defendant to observe the terms of rule 26 with respect to the protection of trains by blue light signals in its modified or partially abrogated form, as set out in detail in that count. The binding effect upon the defendant of the partial abrogation of rule 26 will again be adverted to in considering the case on the merits. (2) The second assignment of error is that the court at a former trial, having excluded evidence on behalf of the plaintiff for variance between the evidence and allegations, allowed the pleadings to be amended and continued the case. This ruling was in conformity with section 3384 of the Code, and the practice is to be commended as promotive of substantial justice, and was without prejudice to the defendant. — 731 — (3) The next assignment of error presents the conflicting theories of plaintiff and defendant, involving the very-right of the case. The contention of the defendant is that rule 26 (designed for the protection of workmen at work under or about a car, engine or train) is controlling, and being clear and unambiguous, its legal import is to b'e determined by the court, and that parol evidence was inadmissible to contradict or vary its terms. This assumption is founded upon a misapprehension of the plaintiff’s position. He does not seek to submit to the jury the interpretation of rule 26, nor to contradict or vary its terms. His proposition is that it is competent to allege and prove as a matter of fact that the printed rule in its integrity was never in force with respect to trains on the Clifton Forge yards, bnt that it had been modified or partially abrogated in regard to such trains. This was the object of the second count in the declaration, already noticed, and for that purpose the evidence, the admission of which is the ground of this assignment of error, was offered. In sustaining the theory of the plaintiff the circuit court was well within the decisions of this court. Southern Ry. Co. v. Johnson, 111 Va. 499, 69 S. E. 323; N. & W. Ry. Co. v. Cofer, 114 Va. 434, 76 S. E. 909. The part of rule 26 applicable to the present controversy reads: “A blue flag by day and a blue light by night, placed on or at the end of a car, engine or train, denote that workmen are at work under or about the car, engine or train. The car, engine or train thus protected must not be coupled to or moved until the blue signal is removed by the person who placed it.” This rule was modified in the following particular: As soon as practicable after a train comes in on the yard at night, and while the engine is still attached, blue lights are to be placed on the rear end of the rear car and on the front end of the foremost car next to the tender, and not — 732 — on the front of the engine. As soon as these lights are placed in position it is the duty of the car inspectors and car repairers to commence work on the string of cars, the bine lights denoting their presence, and are intended for their protection, as indicated in rule 26. It was likewise the duty of the yard hostler, promptly on the incoming of a train, to take charge of the engine and uncouple it from the cars and take it to the round-house for inspection and repairs. If the blue light was placed at the head of the engine, instead of the front end of the car next to the tender, it would “tie it up” so that the hostler could not uncouple it until the blue light was removed. The modified rule was intended to expedite the business of the defendant on the yards, and by careful handling the necessary slack could be given and the engine uncoupled without endangering the safety of workmen under the cars, and this was the universal practice on the Clifton Forge yards. (4) The next assignment of error denies the right of the trial court, on motion of the plaintiff, to require the production of a contemporaneous written statement of an employee concerning the accident who was examined as a witness by the defendant. We do not think the trial court exceeded its authority in the premises. Such statement was admissible for purposes of impeachment—as much so as would have been the testimony of an impeaching witness that the employee had, on another occasion, made a contradictory statement. On the other hand, if the statement is not contradictory, but tends to corroborate the testimony of the witness, it would not be prejudicial to the defendant. The trend of modern practice is to relax rather than restrict the rule in regard to the admission of evidence in the effort to develop the whole truth of the matter under investigation. (5) There was evidence to sustain the claim of the plain — 733 — tiff that the hostler had assumed charge of the engine fo • the purpose of uncoupling it from the train preparatory to taking it to the round-house at the time he called on the engineer to give him slack, and he knew at that time that the train was protected by blue lights. In these circumstances in legal contemplation, the acts of the engineer and fireman, done in his presence and by his direction or at his request, were as much his own acts as if done by him personally. (6) The verdict of the jury has set at rest the conflicting-testimony of witnesses, and the case must be considered by this court as upon a demurrer to the evidence by the defendant. Considering the case from that viewpoint, the salient facts are these: At the time of the accident the plaintiff was a car repairer in the service of the defendant, doing night work on its upp'er yards at Clifton Forge. The yards contain numerous tracks running east and west, and the custom was for two inspectors and two car repairers to work each train as it came in. One inspector, with a car repairer, would take the south side of the train and work from east to west, while the other inspector and car repairer would work the north side from west to east. The inspectors examined each car for defects, and the repairers made such light repairs as they were ordered to make by the inspectors. When the plaintiff was employed as car repairer he was directed to report to the general foreman of car inspectors on the yards, by whom he was assigned to duty under Inspectors Deaton and Holland. He was told that they would instruct him as to his duties and the rules for his guidance, and that he must take orders from them and obey them. He was not given a book of rules, and never saw or knew of rule 26 until after the accident. The inspectors instructed him as to his duties and the terms of the rule as modified with respect to the placing of blue lights. During the entire term of Ms ser — 734 — vice the above rule was in force and observed in tbe yards, and be bad never known a train protected with blue lights, as prescribed by tbe rule, to be moved. It was impossible for tbe bostler to uncouple tbe engine and tender from tbe front car without seeing tbe blue light. On tbe night of tbe accident plaintiff was working under Inspector Deaton, when a freight train came in on the yards and stopped. Deaton told him they would work that train from tbe south side, beginning at tbe end of tbe car next to tbe tender, and immediately placed a blue light on that end of tbe car on tbe south side. In obedience to an order from Deaton, plaintiff went under tbe rear end of tbe front car to replace a yoke bolt. It was necessary for him to go underneath tbe car to replace tbe nut, and to assume a sitting posture with bis back toward tbe rear axle of tbe car. While thus engaged tbe yard bostler came on tbe scene to take charge of tbe engine, and, discovering that tbe engine could not be uncoupled without slack, be went forward to tbe engine. He found tbe engineer standing on tbe step of tbe engine in tbe act of stepping off on tbe ground. Tbe bostler told him to give him a little slack to cut tbe 'engine off; whereupon tbe engineer directed tbe fireman, who was still on tbe engine, to give tbe slack. Tbe fireman reversed tbe lever and turned on such a bead of steam that tbe impact forced tbe front car back for a distance varyingly estimated at from six to fifteen fe'et. There were thirty-odd iron cars in tbe train loaded with coal. Tbe violence of tbe collision was such that it threw plaintiff’s right leg across tbe rail, and bis jacket was caught under tbe wheel and so wound up that be was dragged a number of feet and well-nigh choked to death before be could be released. But tbe chief injury was to bis right leg, tbe bone of which was crushed and tbe flesh torn off one side. He was in tbe hospital for seventeen months, and bad since undergone six or seven operations — 735 — for the removal of diseased pieces of bone. The accident happened in April, 1910, and at the last trial, in July, 1912, there was a running sore on his leg; and some of the medical experts were of opinion, from the diseased condition of the leg, that amputation might still become necessary. Plaintiff had be'en compelled to give up work, his general health was impaired, and he continued to suffer great pain. Prior to the injury he was a robust young man, within a few months of attaining his majority, and with an earning capacity of from sixty-five to seventy dollars per month. Without discussing the instructions, it is sufficient to say that the case was fairly submitted to the jury on the law, and their verdict awarding the plaintiff $17,000 was approved by the trial court. The assessment, it is true, is larger than usual in such cases, but there was ample evidence to sustain the finding, and, upon familiar principles, this court would not be warranted in disturbing the verdict. We find no reversible error in the record, and the judgment must be affirmed.