Arlington County Virginia USGenWeb Archives Court.....Grove, Silas B. March 14, 1912
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Source: Virginia Appeals: Decisions Of The Supreme Court Of Appeals Of Virginia Edited By Maury Baldwin Watts; Volume Vi, Jan 1 - Aug 31 1912. Published Richmond 1912
Written: March 14, 1912

Washington Southern Railway Company v. Grove's Administrator.
(Richmond, March 14, 1912.)
1. Contributory Negligence -- Burden of Proof -- Evidence -- Demurrer.--
Contributory negligence is an affirmative defense, and the burden of
establishing it is upon the demurrant, unless it is disclosed by the demurree's
evidence, or can be fairly inferred from all the circumstances of the case.

2. Appeal and Error -- Demurrer to Evidence -- Uncontradicted Evidence.-- The
rule governing the consideration of a case before the appellate court upon a
demurrer to evidence does not require the court to exclude from consideration
evidence favorable to the demurrant with which the evidence of the demurree does
not conflict. Such evidence is entitled to the same consideration as if the
demurrer had not been interposed.

3. Contributory Negligence-- Disobedience of Employe.-- Where the failure of an
employe to obey the orders of his superior officer contributes to an injury
resulting in the death of the former, there can be no recovery for the injury.

4. Master and Servant -- Duty of Servant to Provide for Own Safety.-- It is as
much the duty of a servant to provide for his own safety from such dangers as
are known to him, or are discoverable by ordinary care on his part, as it is the
duty of the master to provide for him.

5. Railroads -- Employes Engaged on Yards -- Vigilance.-- Employes of railroad
companies engaged within yard limits are exposed to more than ordinary peril,
and should be on the alert and vigilant to guard against injury from the
movement of engines and cars always to be expected.

Error to Circuit Court of Alexandria county.
Reversed.

Hill Carter and Francis L. Smith, for the plaintiff in error. 
Leckie, Fulton & Cox, Jos. T. Sherrier, Lewis H. Machen, and Moncure, Tebbs &
Gaines, for the defendant in error.

Cardwell, J.:

Silas B. Grove's administrator brought this action to recover damages for the
death of his intestate, which he alleges was occasioned by the negligencce of
the defendant railway company. The defendant demurred to the evidence and the
circuit court gave judgment for the plaintiff for the damages ascertained by the
verdict, which judgment we are asked to review and reverse.

The defendant company was, on the 25th day of January, 1909, engaged in the
business of a common carrier by railroad in Alexandria county, Virginia, and in
the conduct of its business as such owned and controlled certain yards and
tracks known as the Potomac yards. Within these yards there are about 52 1/2
miles of trackage, consisting of about one hundred tracks and two hundred
switches. The yards are used by the defendant company in handling its own cars
and those of four other railroads, including the Southern Railway Company. All
movements in the yards are made under the direction and superviosion of the
defendant company.

At the date of the accident causing the death of Grove, viz., January 25, 1909,
about 2000 cars were handled, each day within the yards. The crews operating
trains belonging to other railroad companies become subject to the control and
direction of the defendant company as soon as they enter the yard limits. Among
the tracks contained within these yards was one known as the "naught" track, and
another known as the "thoroughfare" track, which was connected with the "naught"
track by means of a switch, and a portion of the "naught" track south of said
switch was known as the "ladder" track.

At the time of this accident, Grove was an experienced brakeman, thoroughly
familiar with the method of operating the yards, the trains and the cars
handled, having been in the employ of the defendant company at its said yard for
the previous year. Upon the occasion of the accident by which Grove received his
injuries, he was, in his usual employment, engaged as a brakeman on a train of
twenty-eight freight cars which had been made up on the shop repair tracks in
the yards and was being pushed by an engine up and over the "thoroughfare" track
to the point where that track runs into and adjoins "naught" track, and were
intended to be moved over "naught" track after passing through and over the
switch connecting that track with "thoroughfare" track. This train was being
moved in a northerly direction, with the engine at the south end pushing and
backing it, and at the north end or front of the train was a car loaded with
lumber. Grove had been sent by Conductor Bayliss, who was in charge of this
train, forward with instructions to set the switch for the passage of that train
from the "thoroughfare" track to the "naugh" track, and as he (Bayliss) states
to remain there until the front of his train reached that point. After giving
this order. Conductor Bayliss walked back down his train about ten car lengths
from the front and there got up on top of one of the cars. In the meantime Grove
had, after settign the switch, walked back to the front end of his train and
mounted the car loaded with lumber. During this time a train of the Southern
Railway Company was moving north along and over "naught" track to the point
where it was connected with the "thoroughfare" track by the switch just
mentioned, said train consisting of an engine and three cars, with the engine in
front carrying a headlight, causing a brilliant light in advance of the
approaching train, which could be seen when a thousand feet away by a person
standing at the switch, and thence all the way in its progress to that point. As
the Southern train approached the switch, it was found set against the train's
movement, and thereupon a brakeman from that train was sent forward to change
the switch for the passage of the Southern train over it; but this train,
instead of having stopped clear of the switch connecting the two tracks, had run
upon the frog of the switch so as to foul the connection at that point and
prevent a train running over the "thoroughfare" track from passing over the
switch to the "naught" track without colliding with it. After the engine of the
Southern train ran on the switch and fouled it, a brakeman of that train, who
was on the left side of the engine, got down upon the ground, walked around the
engine to the switch and was just about to throw it for his train, when he heard
some one shout, "Look out!", and the defendant company's (Washington-Souther)
train ran into the Southern train at the frog, and the defendant's front or
leading car was derailed by the collision and turned upon its side, the lumber
with which it was loaded was thrown out, and the body of the deceased, Grove,
was found under the lumber on the west side of the track. Grove, the front
brakeman of his train, was subject to the orders of his conductor who had
authority to assign the brakemen to the places where they were to work and to
prescribe the duties to be performed by them.

The contentions of the plaintiff are, that the collision between the said trains
resulted from the negligence of the defendant company, (1) in making up the
train upon which Grove was employed in an improper manner, so that it had to be
operated at the point of collision at an unreasonable and dangerous rate of
speed and at a rate in excess of that limited by the rules and custom of the
defendant company; (2) in giving improper and conflicting orders to the crews of
the respective trains, and without giving each of said crews information as to
the order given the other, and without taking any precaution whatever to prevent
a collision; and (3) in causing and allowing the Southern train. in violation of
the rules and practice of the defendant company,
to be stopped upon the switch by its crew, who at the time were under the
defendant company's control and direction.

On the other hand, it is the contention of the defendant company, that it was
not guilty of negligence resulting in the injury to Grove, but that had he
obeyed the instructions given him by his superior — Conductor Bayliss — and
remained at his post of duty, there would have been no accident, and certainly
he would not have been injured, for standing at the switch he could have seen
the Southern Railway engine with its bright headlight when a thousand feet
distant, and thence all the way to the scene of the accident; he would have an
unobstructed view of 500 feet of the track over which his own train was going,
and which he knew was approaching, for as a member of its crew he had been sent
forward to throw the switch for it and told to remain there as a sentinel to
guard and protect its approach to that point ; and had he performed his duty and
remained at his post, he could not have failed to observe the approach of the
Southern Railway train, whose progress he could have arrested and prevented its
engine from fouling the switch, and in so doing would himself have been in a
place of safety.

It very clearly appears from the evidence that neither the speed of the train
nor the darkness of the night, nor the length of the train upon which Grove was
at work, caused
the accident; but upon the demurrer to the evidence it does appear that the
defendant company was negligent in the conduct of its business upon its shifting
yards at Alexandria on the occasion of the accident in which Grove sustained his
fatal injuries, and, therefore, the sole question for our decision is, whether
or not his own negligence contributed proximately with that of the defendant
company causing
his injuries.

Unquestionably contributory negligence is an affirmative defense, and the burden
of establishing it is upon the demurrant, unless it is disclosed by the
demurree's evidence, or can be fairly inferred from all the circumstances of the
case ; but on the question of contributory negligence in this case, which
consists, if at all, in disobedience by the deceased of the orders of Conductor
Bayliss, as well as his
failure to see the engine and train of the Southern Railway Company before his
train struck it, which, as the evidence clearly shows he could have done had he
been at the switch where the accident occurred, authority is abundant to sustain
the proposition, that if Grove disobeyed the orders of Conductor Bayliss to
remain at the switch until his train reached that point, which neglect or
failure of duty contributed to injuries to him resulting in his death, the
plaintiff cannot recover in this action.

The evidence as to Grove's neglect of duty and disobedience of the orders of
Conductor Bayliss, viewed as upon a demurrer to evidence, is as follows:
Conductor Bayliss, who was in charge of the train on which Grove was at work,
and who was in control of both the train and Grove, testifying as a witness
summoned by the plaintiff but introduced
by the defendant company, said: "I instructed Mr. Grove in the shop to go to the
switch and throw it and stay there until the north end of the train came, after
we got train
made up on the 'naught' track on to the thoroughfare track. Also went to the
rear end of the train with him and gave him Py. 702 which states the numbers and
initials
of the train, to deliver to the north bound hump, and instructed him then to go
to the switch and throw it and stay there until the train came. He went on up to
the switch
and gave a signal it was all right to come back; then I went on back up about
ten cars, pulled up, after he stopped, I gave the engineman a signal to come on
back and we
came on back." The witness further states that his instruction to Grove to stay
at the switch until the train arrived there was in accordance with the customary
rule, and that when Grove gave him the signal for the train to come on back, he
(Grove) was standing on the ground at the switch.

As conflicting with this evidence given by Bayliss so as to require its
exclusion from consideration in determining whether or not the trial court erred
in overruling the defendant company's demurrer to the evidence, the testimony
given by Murphy, who was also a brakeman under Conductor Bayliss on the occasion
of the accident to Grove, is
alone relied on by the plaintiff.

It will be observed that Bayliss said that twice on the night of the accident he
instructed Grove as to what he should do in connection with the operation of the
train of twenty-eight cars made up at the shops in the Potomac yards, and to be
moved up and over the "thoroughfare" track to the point where that track runs
into and joins another track known as "naught" track, intending that the
twenty-eight cars were to be moved over "naught" track after passing through and
over the switch connecting that track with the "thoroughfare" track. Murphy in
speaking of the first instruction given by Conductor Bayliss to Grove said he
heard him say, "You go and line up switches up
naught track." When asked with respect to his said statement, "Was that all the
instructions or directions he gave him?" answered: "In my hearing it was." Now
Murphy
does not pretend to deny that he was not in a position to hear all that passed
between Bayliss and Grove, but states facts and circumstances going to show that
all his statement amounts to or was intended to mean was, that he only heard a
part of what passed between Bayliss and Grove when the former first directed the
latter as to what he should do in connection with the moving of the train.
Moreover, the other facts and circumstances shown clearly establish that the
witness Murphy was necessarily separated from both Bayliss and Grove before they
last parted and the signal for the train to back up to the switch was given, and
he does not attempt to locate either until he received that signal.

Upon this state of evidence, the testimony given by Bayliss, that he instructed
Grove to remain at the switch until the rear end of the train reached that
point, is uncontradicted.

The rule governing where a case is before us upon a demurrer to evidence does
not require the exclusion from consideration evidence favorable to the demurrant
with which the evidence of the demurree does not conflict; but in such a case
the evidence of the demurrant as to which there is no conflict or contradiction
is entitled to the same consideration as if the demurrer to evidence had not
been interposed. Russell Creek Coal Co. v. Wells, 96 Va. 416.

The evidence, as we view it, is conclusive, that if Grove had obeyed the
instructions gien him by Bayliss the accident in which he lost his life would
not have happened.

Plaintiff's witness, R. M. Colvin, general yard master of the Potomac yards,
testifies that owing to the palce where the work (of shifting cars on the yards)
was conducted and the nature of business transacted, the only way to move the
trains was by requiring each train crew to protect themselves by the exercise of
the vigilance and care required under the circumstances; and the witness Murphy
says, with reference to instructions given him by the conductor in the movement
of freight trains in the yards, "He would always tell us to line up the switches
and look out for the head end of the train." Grove, instead of remaining as
instructed at the switch and keeping a lookout for the head end of an
approaching train, which could only have been effectively executed by him when
standing on the ground, left that position and met his train before it reached
the switch, and mounted to the top of its fron car loaded with lumber, from
which position he could not by a proper signal stop any other train approaching
the switch, as he could have done had he remained on the ground at the switch.
Very clearly from the evidence, if Grove had remained at the switch, he could
not have failed to see the approaching engine and train of the Southern Railway
Company, as it was approaching the switch, and avoided, at least, an injury to
himself, either by signalling that train, or by placing himself beyond danger
from the inevitable collision of the two trains.

It is a well settled principle of law that it is as much the duty of the servant
to provide for his own safety from such dangers as are known to him, or are
discoverable by ordinary care on his part, as it is the duty of the master to
provide for him.  Russell Creek Coal Co. v. Wells, supra, and authorities cited;
Pittard's Admr. v. Southern Ry. Co., 107 Va. 1, 1 Va. App. 281 ; N. & W. Ry. Co.
v. Belcher, 107 Va.
342, 1 Va. App. 475.

The duty of a servant engaged in the carrying on of dangerous work to exercise
care for his own safety is commensurate with such dangers as are known to him or
are discernable by ordinary care on his part. 

"The yard of a railroad is the scene of ceaseless activity, the shifting of cars
and the movement of engines ; and in order to carry on their work and promptly
discharge their duties there must be a careful economy of time, and as far as
possible every moment must be utilized. Under such conditions, those engaged
within yard limits are exposed to more ordinary peril, and should be on the
alert and vigilant to guard against injury from the movement of engines and cars
always to be expected." Pittard v. Southern Ry. Co., supra.

1 Labatt on Master & Servant, sec. 334, says: "The general effect of authorities
is, that where the evidence shows that the injury complained of was due to the fact
that, at the time of the accident, the servant was occupying a position which
was obviously more dangerous than another which was available, the prima facie
presumption
of contributory negligence arises, which will warrant a court in declaring, as a
matter of law, that the action cannot be maintained." Holland v. S. A. L. Ry.
Co., 38 A. & E. R. R. Cas. (N. S.) 787, 58 S. E. 835.
Section 363 of Labatt on Master & Servant, supra, further says : "According to
nearly all the decisions, contributory negligence should be inferred, as a
matter of law, whenever the injury resulted from the servant's non-compliance
with a specific order given by the master or his representative, even though
such an inference might not be a necessary one if the order were not a factor in
the case. This doctrine is applicable whether the order related to the position
which the servant was to take at a given time or place or to the manner in which
an act incident to his duties was to be
done. . . ."

The doctrine just stated has been repeatedly sanctioned in the opinions of this
court.

In R. & D. R. R. Co. v. Risdon's Admr., 87 Va. 335, where a flagman left his
switch, although told to remain there, and entered a car of a train standing on
a sidetrack where he was killed in a collision, it was held that his
disobedience of orders was contributory negligence and barred a recovery for his
death, the opinion of the court saying: "His death was caused, not by the
defendant's negligence, but by his own disobedience of instructions."

In the case here, it plainly appears from plaintiff's own evidence that if his
decedent, Grove, had performed the duty resting upon him of keeping a proper
lookout for the dangers to be expected in the performance of the work in which
he, an experienced employe, was engaged, he would have seen the Southern engine
and train a long distance before he or it reached the switch, whereby injury to
him could, and
doubtless would, have been avoided. But if the negligence of Grove in not
keeping a proper lookout for approaching trains in this crowded and constantly
used railroad yard
was not sufficient to defeat a recovery in this action, there is also no escape
from the conclusion that his disobedience of the order of Conductor Bayliss to
throw the switch and remain there until the front end of his train arrived at
that point so contributed to the accident causing his death as to bar a recovery
of damages therefor.

The effort of the plaintiff to prove that the known rule which Grove was
instructed by Bayliss to observe on the occasion of this accident had, with the
knowledge of the
defendant company, been habitually violated, signally failed. If this, however,
were not the case, the evidence of Bayliss as to the instructions given by him
to Grove is, as we have seen, uncontradicted, and this evidence shows that
Grove's death was caused by his disobedience of orders in failing to remain at
the switch, instead of leaving the switch, a place of safety, and going some
distance therefrom and getting up on the carload of lumber. Had he remained at
the switch until the train got there and then attempted to get on it and been
injured because the train was moving at an improper
speed, the case would have been quite different; but this case, upon the
evidence, is, that he not only neglected his duty under the custom and
conditions known to him, but
disobeyed the positive instructions given him, whereby the right of recovery in
this action is defeated. Labatt on Master & Servant, supra ; Shenandoah &c. R.
Co. v. Lucado, 86 Va. 390; R. & D. R. Co. v. Risdon's Admr., supra; Southern Ry.
Co. v. Johnson, 111 Va. 499, 4 Va. App. 470, and authorities there cited.

It follows that we are of opinion that the circuit court erred in its judgment
for the plaintiff upon the demurrer to the evidence, which judgment has to be
reversed, and this court will proceed to enter such judgment as the circuit
court ought to have entered. 

Reversed.

Additional Comments:
Virginia Appeals: Decisions of the Supreme Court of Appeals of Virginia edited
by Maury Baldwin Watts; Volume VI, Jan 1 - Aug 31 1912. Published Richmond 1912

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