Carter Coal Co. v. Bates

Sims, J., after making the foregoing statement, delivered the following opinion of the court: ■ • The material questions raised by the. assignments of error will be disposed of in their order as stated below. 1. Is the plaintiff’s action barred under the statute of limitations requiring it to be instituted within one year after the injury complained of occurred? In our opinion this question must be answered in the negative. ■ [1, 2] The injury complained of occurred in Tazewell county on the 6th day of September, 1917. The original writ of summons commencing the action was issued by the clerk in August, 1918, and was made returnable to the first October.rules, 1918. At its return day this process was in fact returned by the officer as “executed,” per the endorsement of his return thereon “on the 14th day of August, 1918, in Tazewell county, by delivering a true copy of the within summons to A. Rowen in person, who is superintendent of the within defendant corporation in the county of Tazewell, in which county the said A. Rowen resides.” This return of such process as “executed” was on its face manifestly defective, under the statute in such case made ■and provided, and was subject to be quashed for that reason. On the 14th day of November, the plaintiff sued out and there was issued by. the clerk a second writ of summons, — 595 — in. form an alias writ of summons, made returnable to the third December rules, 1918. The latter process, prior to its return day, was executed in a legal manner and was duly returned endorsed by the officer as so executed. Meanwhile, on the 4th day of December, 1918, upon the special appearance of the defendant company, by counsel, and its exception to the said original process and the return thereof, and motion seeking such relief, the court sustained such motion and ordered “that the said (original) process and the return thereon be and the same are hereby quashed.” The statute on the subject of alias and pluries process, as it stood at the time this case arose, is contained in Code 1887, section 3221, and is as follows: “If at the return day of any process, it be not returned executed, an alias, or other process, may be issued, without waiting (when the first process is returnable to a term) for the subsequent process to be awarded at rules; and where, for want of a return of the first process against a defendant, subsequent process is issued, if the former was executed the officer shall not execute' the latter, but shall return the former, if it be in his possession, and if it be not, shall return the latter with an endorsement of the execution of the former, and the proceedings thereupon shall be as if the first had been duly executed.” The position of the company is that under this statute the second process cannot be regarded as an alias process, because it was not issued at the return day of the original process, but must be regarded as an original process commencing a new action after the expiration of the one year-from the date of injury; that the statute requires all alias process to be issued “at the return day” of the original process; and that otherwise there is a hiatus in the action which operates as a discontinuance of it; and Burks’ Pl. & Pr., pp. 290-291; 20 Encl. Pl. & Pr., p. 1179; 32 Cyc. 446; United States v. Parker, 2 Dall. 373, 1 L. Ed. 421, 423; Col596 ling v. McGregor, 144 Mich. 651, 108 N. W. 87; Koonce v. Pelletier, 115 N. C. 233, 20 S. E. 391; and Noell v. Noell, 93 Va. 433, 25 S. E. 242, are cited to sustain such position. There is thus presented a very interesting question and one not free from difficulty. But, confining our holding to the precise facts of the case before us, which are, in substance, to the effect that there was no defect in the original process itself; that at its return day it was returned “executed” by the officer, although in a defective manner, as aforesaid; and that the defect was only in the service and return of the writ; we are of opinion that the case is ruled by the decision of this court in Virginia Fire & Marine Ins. Co v. Vaughan, 88 Va. 832, 14 S. E. 754, that the original writ so returned sufficed to keep pending the action commenced thereby, without any hiatus, until the return thereon was quashed by the court, and that the second writ having issued prior to the quashing of the return on the original writ, and having been duly served and returned, there was no hiatus in the action which could operate as -a discontinuance thereof. The case of Va. Fire & Marine Ins. Co. v. Vaughan, supra, has been of such long standing in its holding, undisturbed prior to the Code of 1919, that it has established a rule of practice which has been doubtless followed by the bar of the State prior to such Code. Hence, we feel that we should not hold ineffective action which has been taken in accordance with that rule of procedure. In the case just mentioned the action was on a fire insurance policy, which stipulated that it must be commenced “within six months next succeeding the date of the fire or damage.” The original writ of summons was issued within that period and was made returnable to rules. It was returned “executed” on an agent of the defendant company on a certain date, but that date was less than ten days before the return day. Therefore, the service was bad, not — 597 — being in conformity with the statute in such case made and provided. Code, section 3227. Accordingly, the defendant moved the court at a subsequent term to quash the writ and return and to dismiss the case from the docket. The circuit court overruled the motion and remanded the cause to rules “to be properly matured.” An alias writ of summons was afterwards accordingly issued, which was duly served and returned. In the opinion of this court, delivered by Judge Lewis, this is said: “1. There is no error in the order of the circuit court remanding the case to rules to be properly matured. The defect was not in the writ itself, but in the service and return, and that was no ground for quashing the writ. The recent case of R. & D. R. Co. v. Rudd, 88 Va. p. 648, 14 S. E. 361, is a sufficient authority upon this point. “2. This also disposes of the question whether the action was commenced within the time stipulated for in the policy; that is, ‘within six months next succeding the date of the fire or damage.’ The commencement of the action' was the issuance, not of the alias, but of the original summons, and that was within the stipulated period.” From what is said on the first point dealt with in the case just cited, it will also be seen that the court draws*a proper distinction between cases where the original writ is valid, but the service is invalid, as is true of the original writ in the case before us; and cases where the original writ itself is void, as was true in the case of Noell v. Noell, 93 Va. 433, 25 S. E. 242, cited in the reply brief for the company. [3] As will be observed, the holding of this court in the case just cited is to the effect that the original process returned “executed” as aforesaid, although in a manner which rendered the service invalid, sufficed to authorize the placing of the case on the docket and to keep the action pending from the date of the issuing of the writ until the circuit court acted upon the motion to quash the return; and that. — 598 — the action of the circuit court in remanding the case to rules to be properly matured kept the action still further pending until the second process was accordingly subsequently issued, duly served and returned, thus preventing any hiatus which could operate as a discontinuance of the action; so that the latter process was held to be an alias and not an original writ. Following such holding we conclude that the second writ in the case before us must be regarded as an alias and not as an original writ commencing the action, and that the action in the case before us was commenced by the original writ, and suffered no discontinuance prior to the issuing of the second writ. [4] Such being our conclusion, based upon the construction which this court has heretofore given to the Virginia Statute as applicable to facts which are substantially the same as in the case now before us, it would be of no profit for us to consider the question now before us on principle and in its broader aspects as applicable to other process, or to further deal with the authorities cited and relied on by the company on such question. We have been the more disposed to this course because of the fact that under the statute as amended by the Code of 1919 (section 6059) it is made the ex officio duty of the clerk, unless otherwise directed by the plaintiff or his attorney, to issue alias and pluries process in all cases at the return day of the next preceding process if the latter be not on that day returned executed, thus fixing expressly the time at which all alias and pluries processes must be issued in all cases which have arisen since the new Code went into effect, and which may arise in future. [5] 2. Did the instruction of the mine foreman to the brakemen on the cars operated on the main haulway, with carbide lights in their caps, to ride on the front end of each trip of cars, “provide * * * for the carrying of a conspicuous light ■ on the front * * * of every trip or train — 599 — of cars when in motion * * * ,” which is required by the statute (4 Pollard’s. Code, p. 833). We are of opinion that this question must be answered in the negative. [6] Aside from the question of the sufficiency of the light, which we do not here pass upon, such an instruction as that given to the brakeman in the case before us is not a provision for the carrying of a light on the front of the trips or trains of cars at all. It would serve to provide a light in such place only if the brakeman should chance to bi in such a position as he rides on the front end of each trip of cars that the light on his cap would shine ahead; and it would provide that light only so long as the brakeman might not be called away from his position by some occurrence which calls for attention elsewhere. It is manifest that it is likely to often happen that there may be some derailment or other occurrence which may imperatively call the brakeman from the position on the front of the trip or train of cars for a time and the cars may be in motion at the time or before he can regain that position. Such ah occurrence, indeed, happened in the instant case. There had been a wreck about 100 to 150 yards down on the main haulway track. At that place the brakeman on the main line train was occupied in “putting some wrecks on,” which took him away from the end of the train; and when he got aboard the train he got on “about the second or third car from the head end,” and he was going across the cars when they were in motion, towards the head end, with his light invisible ahead, to the plaintiff, either preceding or when the accident occurred. To be a .provision such as is required by the statute, it should be a provision for a light affixed or hung on the front of the trip or train of cars itself, in such a manner that it will shine ahead. [7] 3. Did the court below err in giving the following instruction at the instance of the plaintiff? — 600 — INSTRUCTION NO. 2. “The court instructs the jury that if they believe from the evidence that the defendant company was running the train of empty mine cars through the main entry with the trip motor at the time the plaintiff, William M. Bates, was injured, without providing a proper system of signals therefor, or without having a conspicious light on the front end of said train, then the defendant was guilty of negligence, and the plaintiff is entitled to recover, provided the said negligence was the proximate cause of the plaintiff’s injury, and the defendant was not guilty of contributory negligence ; and, if the defendant relies upon contributory negligence as a defense, the burden is upon the defendant to prove by a preponderance of the evidence that the plaintiff was guilty of contributory negligence.” The question just stated must be answered in the negative. The objection urged against this instruction by the company is that the statute says that it shall be the duty of the mine foreman to provide for the carrying of the light on the front end of the train. The instruction tells the jury that the defendant was liable if the light was not there. The difference between the instruction and the statute is the difference between the absolute duty of having the light there and the duty of providing for its being there. Abstractly, the objection is well taken. The instruction should have contained the qualifying word “provide,” which is in the statute, in connection with the language on the subject of the light, so as to have read “without providing for a conspicuous light,” etc. But such error was immaterial and harmless in the instant case, since there is no evidence that the company provided for a light on the front end of the train in the sense which we have above held the statute requires. — 601 — [8] 4. Did the plaintiff, by continuing his work in the mine, after knowledge of the breach by the company of its statutory duty aforesaid of providing for the carrying of a conspicuous light on the front of every trip or train of cars on the main haulway, assume the risk of injury from such breach of duty by the master ? We are of opinion that this question also must be answered in the negative. This question was heretofore an open one in this court, it was left undecided in Virginia Iron, Coal and Coke Co. v. Asbury’s Adm’r, 117 Va. 683, 86 S. E. 148. There is a conflict of authority on the subject elsewhere. See Narramore v. Cleveland, etc., Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 268; Denver, etc., Ry. Co. v. Norgate, 141 Fed. 247, 72 C. C. A. 365, 6 L. R. A. (N. S.) 981, 5 Ann. Cas. 448; Knisely v. Pratt, 148 N. Y. 372, 42 N. E. 986, 32 L. R. A. 367. The same statute and the precise question which we have under consideration was before the United States Circuit Court of Appeals in the case of Pocahontas Consolidated Collieries Co. v. Johnson, 244 Fed. 368, 156 C. C. A. 654. In that case Judge Knapp delivered an able and forceful dissenting opinion; but the majority opinion, delivered by Judge Woods, equally able and more convincing to our minds, held that the doctrine of assumption of risk does not apply to the breach of such a statutory duty as that in question. We think that is the sound and correct conclusion, both on principle and upon authority. See the case last mentioned and the authorities therein cited. [9] When we consider the subject on principle, we see that if the conclusion just stated be not correct, the statute may be nullified and set at naught merely by the flagrant and systematic violation of it. It cannot be doubted that the common law doctrine of the. assumption of risk may be abolished by statute with respect to any duty of the master. — 602 — Now by necessary implication, as we think, that precisely is the effect of the statute in question in its application to the statutory duty under consideration. And, tb say that the statute may be nullified by the systematic violation of it, is to hold that the common law doctrine aforesaid cannot be abolished by statute, which would be a contradiction in terms. ' ’ riO] 5. Did the court below err in refusing to give either of two instructions, Nos. 7 and 8, asked for by the company, which were the same in substance and would have instructed the jury that if they should “believe from the evidence that it was the duty of the plaintiff to use reasonable care to protect himself from the main heading motor, flagging or listening for the same, while he was on the main entry with his gathering motor, and that the plaintiff failed to use reasonable care to protect himself from said main heading motor, and that such failure on the part of the plaintiff contributed to the injury complained of, then you are instructed that the plaintiff was guilty of contributory negligence and cannot recover?” This question must be answered in the negative. The court had already given' three instructions at. the instance of the plaintiff, Nos. 1, 2 and 3, and four instructions at the instance of the company, Nos. 1, 2, 3 and 5, in which the question of contributory negligence was submitted to the jury. Instruction No. 1, given at the request of the company, was as follows: “The court instructs the jury that the defendant company was not the grantor of the safety of the plaintiff, and that the plaintiff was under as great obligation to provide for his own safety from such dangers as were known to him, or were discernible to a person of his age and capacity by the exercise of ordinary care on his part, as the defendant was to provide for him, and if the jury believe from the evidence that the plaintiff might have — 603 — saved himself from injury: by the exercise of such ordinary care on his part, they must find for the defendant.” We are of opinion that the jury were sufficiently instructed on the subject of contributory negligence, and that the giving of instructions 7 or 8,- asked for by the company, would have been a needless multiplication of instructions on that subject. [11] 6. Did the court err in allowing the plaintiff to again testify on the subject of the speed of the motor he was operating, as set forth in the statement preceding this opinion? We think his testimony was plainly admissible under the rules applicable to rebuttal evidence. If a witness, under such circumstances, makes a change in his testimony, his credibility is for the jury. There are some other questions raised by the assignments of error, but as they are not in any way novel, it is deemed sufficient to say of them that we have carefully considered all of them and find no merit in any of them. The judgment under review will be affirmed. Affirmed.