This is an action against a railroad corporation, by a brakeman in its employ, for personal injuries received, while working a switch, by being struck by one of its locomotive engines.
The declaration, in seven different counts, alleged as grounds of action that the defendant negligently constructed and kept its tracks and switches in a defective and dangerous condition; that the defendant, by one of its agents and servants, who was at the time unskillful, negligent, and unfit to perform the business and employment that he was engaged by the defendant to perform, and who was engaged in a service for the defendant other and different from the service in which the plaintiff was engaged, and whose negligence, unskillfulness, and unfitness were known to the defendant, negligently propelled one of its locomotive engines against and over the plaintiff; that this was done without sounding any whistle or ringing any bell, as required by the laws of the state of West Virginia; and that the defendant neglected proper precautions in the selection and employment of its agents and servants.
A statute of West Virginia provides that 'a bell or steam-whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman at the distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling until such street or highway is reached,' under a penalty of not exceeding $100 for each neglect; and that 'the corporation owning the railroad shall be liable to any person injured for all damages sustained by reason of such neglect.' St. W. Va. 1873, c. 88, § 31.
As we understand the evidence introduced at the trial, it conclusively proved the following facts: The injury occurred at night, at a place where, as the plaintiff himself testified, 'there was one network of tracks,' in the defendant's railroad yard, near the junction of a branch road with the main road, and about 10 rods from a highway crossing. The plaintiff had previously been employed on another part of the road. On the night in question, in the performance of his duty as a brakeman on a freight train, he unlocked a switch which enabled his train to pass from one track to another; and he was stooping down, with his lantern on the ground beside him, to unlock the ball of a second switch to let the engine of his train pass to a third track, when he was struck and injured by the tender of another freight engine, in no way connected with his train, backing down on the second track. The tender projected 10 inches beyond the rail. The distance between the adjacent rails of the second and third tracks was about six feet. The second switch was a ground switch of a kind in common use, the lock of which was in the center of the space between the two tracks; and the hendle of which was about two feet long, and when lying flat extended towards either track, and when thrown one way opened the switch, and when thrown the other way closed it. The switch could be worked efficiently and safely by a man standing midway between the two tracks, using reasonable care. It could not be safely worked by standing at the end of the handle while an engine was coming on the track next that end. Upright switches could not be used, at a place where the tracks were so near together, without seriously interfering with the moving and management of the trains. The plaintiff testified that he had never worked a ground switch before, and that the first switch was an upright switch. But he admitted on cross-examination that the two kinds of switches were unlocked in the same manner, and the other evidence established beyond doubt that the first switch was also a ground switch. A single witness, who had been a brakeman, called for the plaintiff, in answer to a question, often repeated, of his counsel, whether that was a safe and proper switch to be used at that point, testified that he could not say it was a very safe place at that time there; that he thought that was not a proper kind of switch, and an upright switch would have been more convenient to handle; that he did not think it was a very safe ball there; that he thought it was not a safe ball there; and that it could not be unlocked without danger while an engine or train was coming upon the other track. The engine which struck the plaintiff was being driven at a speed of about 12 miles an hour, by an engineman in the defendant's employ, and there was evidence tending to show that it had no light except the head-light, and no bell, and that its whistle was not sounded. There was no evidence that the tracks were improperly constructed, or that the engineman was unfit for his duty. The other grounds of action relied on were, improper construction and arrangement of the switch; negligence of the defendant in running its engine, by an unskillful and negligent engineman, alleged to have been engaged in a different service for the defendant from that in which the plaintiff was engaged; and omission to comply with the requirements of the statute of West Virginia. At the close of the whole evidence (of which all that is material is above stated) the court directed the jury to return a verdict for the defendant, because the evidence was such that if a verdict should be returned for the plaintiff the court would be compelled to set it aside. A verdict for the defendant was accordingly returned, and the plaintiff sued out this writ of error. B. B. Dovener, for plaintiff in error.
John K. Cowen and C. Boggess, for defendant in error.
GRAY, J.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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