110 Va. 55 | Va. | 1909
delivered the opinion of the court.
This action was brought by defendant in error to recover of plaintiff in error damages for injuries to the plaintiff alleged to have been caused by the negligence of the defendant.
At this, a second trial of the case (the jury failing to agree at the first trial), upon all the evidence offered being submitted to the jury, the defendant demurred thereto, in which demurrer the plaintiff joined; and the jury having assessed damages to the plaintiff in the sum of $3,000, subject to the ruling of the court upon the demurrer to the evidence, the court overruled the demurrer and entered judgment in accordance with the verdict.,
The following are the facts and circumstances attending the accident out of which the suit arose: Williams (defendant in
Williams was working with a gang of men engaged in and about the cut when the accident to him happened, the chief work being tearing down the face of the slope to widen the roadbed, and they were changing the condition of the slope to that end and for that purpose as fast as they could, and the dangers of the situation were all the time apparent.
Just preceding the accident some holes had been drilled up on top of the slope, Williams himself having been up there to carry steel with which to drill them. Upon returning to the cut below, he and others were engaged in loading carts, and while they were so engaged a signal was given from the top of the cut that one of the holes was to be “sprung”—i. e., a “shot” was to be let off. Immediately after the “shot” was let off Williams, with others, who had moved back up in the cut became engaged in loading a cart with rock that had been “shot” down from above. That the rocks all along the slope of the cut were “shivered” and looked dangerous after this “shot” cannot be doubted, although Williams undertook to say in his testimony that “he could not see it,” but admitted that he did not know whether he looked and tried to see or not. In a few minutes one Hensley; who was the foreman (under the walking boss) of the immediate gáng at work at this- cut, and who had been up
After Williams had volunteered to go, Hensley handed him a written order to the commissary clerk, designating the explosives, etc., which were wanted, and (according to a witness who was back on the dump or fill some distance away, and did not hear what Williams had said to Hensley) told Williams “to hurry, they were needing the dynamite right away.” Williams having volunteered to go, in giving the instruction “to hurry,” Hensley gave him no instructions as to the route he should travel, and Williams had in mind no other route than the one he started out on, although there were two other routes entirely safe that he might have taken, both of which he knew of, but had never used them, as he preferred the short way that he had heen going on other trips to the commissary.
The path Williams took passed under the lower side of the grade where the men were at work and led right through the rock and waste that had from time to time been blasted and thrown down, or had rolled down from the cut and cliff or the roadbed above; the path being under the point at which the hole had been “sprung,” and only about 25 or 30 feet below the railroad grade. The path was rough and steep, but was not
The negligence of the defendant alleged is: (1) Unsafety of the place where the plaintiff was required to work; (2) non-inspection; (3) failure to warn as to the danger attending the work being done; and along with the alleged breach of these several duties the charge is repeated that the defendant sent the plaintiff out of his regular employment into dangers that were not incident thereto.
With respect to the charge that the plaintiff was sent out of his regular employment into danger, all that need be said is that he alleges in his declaration, and so testifies, that it was a part of his duty to make trips to the commissary for material; and. aside from his having volunteered to go on the occasion of this accident to him, and having no legal cause of complaint (Echels v. N. & W. Ry. Co., 96 Va. 69, 25 S. E. 545), he has failed, as we shall see, to prove actionable negligence on the part of the defendant.
The proof is absolutely conclusive that the rock, a piece of which struck Williams, was not broken or loosened up on top of the slope of the cut, but- on the side thereof, and no witness states that the plaintiff could not from where he was see the place from which the rock actually fell, but several say that he could.
Whether the defendant’s method of doing the work was the necessary and usual method is not raised by the pleadings nor dealt with in the evidence, and in the absence of evidence to the contrary it will be presumed that the methods of work adopted by a master are proper and sufficient. 26 Cyc. 1413; Moore Lime Co. v. Johnson, 103 Va. 88, 48 S. E. 577. There is no allegation of inexperience in the declaration, nor is inexperience proven. The plaintiff was of mature years—29 years old— and there was no attempt to show that he ever informed the defendant or its foreman, or that they knew, or ought to have known, of his inexperience, if such was a fact. He is to be presumed to be a man of ordinary intelligence, and have known that when the side of the slope under which he was engaged to work was shaken, jarred and “shivered” by blasts necessary to be made on the top of the slope, the materials thereby loosened were liable to fall down upon him and others below. Robinson v. Dininny, 96 Va. 43, 30 S. E. 442.
The rule that it is the master’s duty to inform his servant of dangers ordinarily incident to the service, and if he fails to do so and the servant has no opportunity to learn of them, the servant will not be held to have assumed the risk not obvious to one of his age, experience and judgment, “only applies where there is a danger known, or which ought to be known, to the master, of which the servant, on account of his youth or inexperience, is ignorant, and which he cannot reasonably be expected to discover by the exercise of ordinary care.” Richmond Locomotive Works v. Ford, 94 Va. 640, 27 S. E. 509; Partlett
“In case of an adult servant of sound mind, the rule is understood to be that where the dangers of the employment are visible so that any man of ordinary intelligence, though not an expert, could not fail to see and comprehend them, an employer is under no legal obligation to warn the servant of their existence.” 4 Thompson on .Reg., sec. 4061. See also notes to sec. 394, 1 Labatt on M. & S.
. In Jones v. Mfg. & Inv. Co., 92 Me. 565, 32 Atl. 512, 69 Am. St. Rep. 539, the opinion says: “In Stuart v. West End Street Ry. Co., 163 Mass. 391, 40 N. E. 180, a young man of twenty was set at work feeding hay into a hay cutter, though that was not his regular work. no warning or instruction was given him as to the danger. Held, that the danger was so obvious that he must be presumed to have understood it. The court said: ‘Where the elements of the danger are obvious to a person of average intelligence using due care, it would be unreasonable to require an employer to warn his employee to avoid dangers which ordinary prudence ought to make him avoid without warning. The mere fact that he cannot tell the exact degree of the danger, if the nature and character of it can easily be seen, is not enough to require warning and instruction to a man of full age and average intelligence. Something may properly be left to the instinct of self-preservation and to the exercise of the ordinary faculties which every man should use when his safety is known to be involved.
“ ‘The master may assume that an adult person has Ordinary intelligence and capacity, and unless he has notice to the contrary, he is under no obligation to instruct or warn such a servant as to dangers which the ordinary servant would understand and appreciate.’ 2 Cooley on Torts (3d edition), p. 1132.”
In the last two mentioned cases relied on by the plaintiff in this, the recovery was sustained, but the doctrine laid down in the other authorities above cited was expressly recognized, and in the first named of these two cases it is emphasized that “the unsafe condition was not attributable'to the work which was being conducted in the quarry”; and in the other, the opinion^ after showing that the danger was not open or obvious or discoverable by the plaintiff, in the exercise of ordinary care for his own safety, says: “ETor can it be maintained that the dangerous condition of the place at which Black was put to work and where he met his death was due to the changing and shifting conditions of the quarry brought about in operating it.”
This doctrine is reviewed in 2 Labatt, secs. 587 and 588,
To the contention that Hensley knew of the “perils” which Williams would encounter, and the “dangers incident to travelers along the dug-out way” he was traveling when injured, and that Williams was without experience, a complete answer is that the evidence not only does not show that Williams was inexperienced (in fact, it was not alleged), but conclusively shows that Williams was permitted to go at his own request, and that he as well knew, or ought to have known by the exercise of ordinary care, of any “perils” or “dangers incident” to the route he himself chose, as did Hensley, and, therefore, Williams on no legal ground could complain of the failure of Hensley to warn him of these “perils” and incidental dangers.
The alleged neglect to inspect seems to refer only to the pathway on which the plaintiff, Williams, was struck by the falling rock, and there is no evidence whatever tending to show that such an inspection would have disclosed the danger of rocks falling upon the pathway likely to injure persons passing thereon, or that inspection in such a case was usual or necessary.
In all cases of the class to which this belongs it is held that negligence on the part of the employer cannot be inferred from the mere occurrence of an accident by which his servant is injured; the presumption being that the master has discharged all of his legal duties to his servant, and this presumption can only be overcome by affirmative proof. Moore L. Co. v. Johnson, supra, and cases there cited; Va. I. C. & C. Co. v. Kiser, 105 Va. 705, 54 S. E. 889.
In this case the work was essentially dangerous, and the place was, therefore, not safe; but there is nothing to show that the place was less safe than the work in hand made unavoidable, and, besides the presumption that Williams was acquainted
As already observed, all engaged at work in and about this cut along the side of a cliff knew and well understood, or could have known and so understood by the exercise of ordinary care for their own safety, the dangers attending the work, and that those dangers to a greater or less degree increased as the shifting conditions were brought about by the progress of the work; so that inspection was neither necessary nor usual, and would not, under the circumstances existing when Williams was injured, have afforded him any better protection against danger than the precautions that he could and should himself have taken.
“In order to hold a defendant liable for a negligent injury there must be affirmative and preponderating proof of the de
The requisites of proximate cause are the doing or omitting to do an act which a person of ordinary prudence could foresee might naturally and probably produce the injury by such act or omission, and the infliction of the injury by such act or omission. Wilson v. Southern Ry. Co., 108 Va. 822, 62 S. E. 972, 2 Va. App. 645.
Viewing the evidence in this case in the light of the established principles of law adverted to, we are of opinion that actionable negligence on the part of the defendant has not been established; therefore the judgment of the circuit court must be reversed, the demurrer to the evidence sustained, and judgment entered by this court for the plaintiff in error, the defendant below.
Beversed.