The Roanoke times. (Roanoke, Va.) 1897-1977, 1897-12-05

Norfolk and Western Railroad Company
Vs.. Houchin's Administrator. Reversed.
Opinion by Caldwell, ].
Fl. was killed while employed as front
brakeman on an extra westbound freight
train, No. BIB, in IL collision between
that train and the second section of
regular schedule train, 10. 50, 1t Shu-
mate, in Giles county. The road was
Single tracked at that place. Both trains
were running under the general train
rules. not under special orders. No 80
was in two sections and had right of
way. The extra should have waited at
Shum6te till both sections passed. 1t
was ON the siding when the first section
passed, withsgreen signals, notice that
another section was following H., an
employe of three years standing, was
familiar with the rules. He, the conduc-
tor and engineman all saw the green sig
aals, and knew their import When the
first section stopped at Shumate all the
freight train crew went to sleep, H. lying
between the tracks. The conductor
awoke just as the first section left Shu-
mate, and asked the telegraph operator
if the second section had passed. and
MAS told that it had. carrying no signals.
The others were then awakened and his
train started west, and the collision en-
sued with the second section, which had
was not waiting for orders, nor received
any before starting. The accident re.
suited from the freight conductors TAX
ing his train out contrary to rules.
The court below, of its own motion.
gave instructions to the jury, the gist of
them being that 1T was for them to deter
mine the question of fellow servant as
between the conductor and the brakeman
by the gradations in ranl of the two
| m .lY 10 49, L.
| to determine it by the character of the
negligent act causing the injury, but
making their conclusions depend upon
whether the negligent servant was or
was not in authority over the injured
| one.
| Held: The law of fellow. servants is
laid down by this court in Norfolk and
Western Railroad Company VS.. Nuckols,
81 Va, 1913. and it was said by Riley, j..
IN case of same plaintiff vs. Ampey, 90
Va, los, that the question OF the .rela-
| ton OF the conductor to his crew was an
open question, to be decided when it be-
came necessary. In deciding it the test
as to the liability of the company is not
whether the conductor under the rules is
given authority over his crew, but
whether his negligent act was in the per
formance Of duty which the law de.
volved upon the company and is non-a.-
| SiSu't'ie' VI Wnetner the duty were one
of mere operation, which is assignable.
=. Every man taking service on n train
as fireman, engineer, brakeman, etc.,
must contemplate.it being run under
the order of n conductor, who. though
designated as conductor. with authority
to control and direct the men under him.
| is but "a co laborer Or co-worker with the
other members of the crew engaged i'll "A
| work OF mere operation, common en-
ployment, under one and the same com.
mon employer, from whom all derive
their authority and compensation. A
brakeman, therefore, makes his contract
In contemplation of this superiority of
service in the conductor and assumes the
risk OF injury from the negligence of his
fellow-workmen, and all engaged on the
train stand 10 each other in The relation
OF fellow servants. But if the couuuc
tor, by authority of the master be per
forming duty which the master is not
permitted by law to delegate, he NAV un-
der some circumstances lie in the cate.
CORY OF principal or vice primer pal; never,
however, by the mere superiority given
him in operating or moving his train.
See Jackson vs. Norfolk and Western
Railroad Company, 81 S. T. r., 27S.
where the mon assignable' duties ...of n
railroad company are distinguished FROM
the assignable.
3. Until the question of fellow sci vice
be &C ntrolled by statute, as in England
and some of the United1States the doc.
tr'ne enuncated in Norfolk and Western
| Railroad Company vs. Nuckols, supra.
and same vs. Eonnelly, So Va, must he
regarded as settled law in Virginia