ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA
White, McKenna, Holmes, Hughes, Van Devanter, Pitney, McReynolds
MR. JUSTICE McKENNA delivered the opinion of the court.
Action for damages under the Federal Employers' Liability Act, brought in the Circuit Court of Norfolk County, State of Virginia, by plaintiff in error (we shall call him plaintiff), administrator of the estate of Richard T. Baugham.
The ground of action was that the railroad company, an interstate carrier, caused by its negligence the death of plaintiff's intestate while he was employed and engaged in such commerce.
Richard T. Baugham was between the ages of eighteen and twenty years and was engaged by the railroad company to act as brakeman in its yard at Port Norfolk, Virginia. On the second day of his employment, while mounting a freight car that was being transferred from the wharf of the company to a barge moored at the wharf,
he was killed by being crushed between that car and other cars which were upon the barge.
There were four tracks on the barge. Between the outside and center tracks, of which there were two, there was sufficient space for an employee to mount in safety cars moving between those tracks. There was also sufficient space between the center tracks for some distance from where they entered the barge from the wharf. But these tracks gradually converged until the space between them so diminished that cars being moved on one center track would almost touch those standing on the other center track. The roofs of the cars would sometimes touch.
By reason of this proximity of the cars it is alleged that serious and deadly injury would be inflicted upon the servants and employees of the company if they should be caught between the cars. Plaintiff's intestate was so caught and received injuries from which he died.
It was the duty of the company, it was alleged, to have admonished and warned the deceased of the difficulties, dangers and perils attendant upon his service and duties as brakeman so that he might safely have performed them, but that the company wholly failed to do so, and that in consequence the deceased in the performance of his duties as brakeman on trains being transferred from the wharf to the barge and while ascending one of the cars was caught and confined between the eaves of the roof of the car which he was ascending and the eaves of the roof or roofs of another car or cars and fatally injured.
Damages were prayed in the sum of $50,000.
The company pleaded not guilty and, as special defenses, that the deceased was guilty of contributory negligence and that he "assumed, when he entered the employment of the company, the risk of being ...