79 W. Va. 726 | W. Va. | 1917
This writ of error is prosecuted to a judgment of the circuit court of Nicholas county in favor of the -plaintiff rendered upon a demurrer to the evidence. The defendant company was operating in connection with its business of producing lumber a lumber railroad. It had completed its operations at the place where the accident occurred out of which this suit grows, and was taking up the track. The plaintiff was a locomotive engineer in the employ of the defendant, and at the time of the accident his engine with a car in front of it was being used to take up'that part of the track which had been abandoned. This abandoned track was upon a steep grade and in taking it up the steel rails were loosened in front of the car at the end of the track furthest from the center of operations, and were placed upon the car, and then the engine and car were moved further down the hill, so as to permit of more rails being taken up and loaded. At the time of the accident there had been loaded on the car fifty-seven of these steel rails, and the engine with the car in front of it had just been moved down the hill by the plaintiff for the purpose of permitting some additional rails to be taken up and loaded on the car to complete the load, which load was to consist of sixty rails. After
Plaintiff asserts his right to recover for the injury he sustained on this occasion upon several' grounds. He contends that the throttle valve of the engine which he was operating was leaking, and that, by reason of this leak the engine and car were started down the hill on the occasion of the runaway' He contends also that the car was overloaded at the time; that the car had a defective wheel and defective coupling'; that it was negligence in the defendant company to instruct him to assist in loading the rails and in not requiring him to remain on his engine while it was standing still; that there was negligence in not furnishing a conductor to be in charge of the train; and that there was negligence in not furnishing an experienced foreman to be in charge of the work.
At the conclusion of the evidence the defendant demurred thereto orally, the court received such oral demurrer, and the plaintiff without objection joined therein. Upon this demurrer the jury rendered a conditional verdict and the court found for the plaintiff thereon and rendered judgment in his favor.
The court below gave as his reason for overruling defendant’s demurrer to the evidence and rendering judgment for the plaintiff the failure of. the defendant to furnish a typewritten copy of the evidence. This oral demurrer to the evidence was received without objection, and the plaintiff without objection joined therein. It appears from the ree-
That the locomotive which the plaintiff was operating at the time of the accident was equipped with a throttle valve that leaked is admitted. It is also admitted that the company" knew of this for some time before the -accident; that it had been called to the attention of the superintendent of the company by the plaintiff himself when he took charge of the locomotive some three months before the injury; that at the time the plaintiff called attention to this defect the superintendent of the company advised him that the company did not desire to make any expenditures that were not absolutely necessary, and that he would try to get another throttle valve from some of the other operations of the company; that subsequently another throttle valve was procured, but that it would not fit the engine, and that the old one was continued in use thereon, and was so in use at the time of the accident. It seems that efforts had been made to secure the necessary fittings to correct this defect up to the time of the accident, but such efforts had not been successful. The plaintiff admits that he was fully informed of this defective condition of the throttle valve, and knew the result of this defect upon the operation of the engine. It further appears from his testimony that he operated the engine in this condition and with this knowledge. It is further shown that
After a careful review of the evidence we are forced to the conclusion that this accident was caused by. the engine being started by steam leaking into the cylinders because of the leaking throttle valve. The plaintiff, who appears to have a more intelligent conception of the accident than any one else present, attributes it to this cause, and explains how the leaky valve operated so as to cause the engine and car to run away. Counsel for the defendant argues that in as much as the plaintiff testifies that he left his engine in such a condition that it would go forward in casé of steam escaping into the cylinder, this could not have caused the running away of the car and engine on this occasion. This does not necessarily follow. 'We think that even though the reverse lever of the engine was set so as to have a tendency to propel the engine forward in case the steam leaked into the cylinder that such movement of it forward in this case had the effect of agitating the loaded car which was then standing still, and it was the shaking or agitation of the car from the movement of the engine that caused it to start and move down the hill. Finding that the accident resulted from this defect in the throttle valve of the engine the defendant company would be liable for the resultant injury to the defendant, unless he assumed the risk of injury to himself on this account by remaining in the service, or unless he was guilty of contributory negligence in jumping on the engine after it had started to move. We cannot say as matter of law that the plaintiff was guilty of contributory negligence in boarding the moving engine and attempting to stop it under the emergency that existed.
This leaves for consideration the question of the assumption of the risk by the defendant of injury from this defective machinery. As before shown, the facts in regard to the plaintiff’s knowledge of the defect, and the result of this defect upon the movement of the engine, are admitted by him
In Laverty v. Hambrick, 61 W. Va. 687, it was held: “By entering upon, and continuing in, service in an unsafe place, the dangers of which are known and fully, appreciated by him, a servant waives the performance by the master, of the duty imposed upon him by law in respect to the safety of the place in which the service is performed.” Judge Poeeen-barger in the opinion of the Court in that case, p. 691, says: “As the plaintiff himself admits that he knew and appreciated the danger incident to the work he was doing under the conditions existing, the applicability and the conclusiveness of these authorities are clearly manifest.” This quotation has peculiar application to the conditions existing in this case. The same doctrine is announced in the case of Jones v. Railway Co., 74 W. Va. 666. Many cases might be cited to support this doctrine, but it is so uniformly applied by the courts that a multiplication of authorities is deemed unnecessary. . .
This leads to a reversal of the judgment of the circuit court, unless the plaintiff is relieved of the assumption. of risk upon his part by the promise of the master to repair the ■ defective throttle valve. Upon this question the plaintiff testifies that when he went to work with the engine he called the attention of the superintendent to this leaking throttle valve, and that such superintendent then informed him that the company did not desire to make any expenditures except such as were absolutely necessary, and that he would send to another operation of the company and get a throttle to
The plaintiff contends that this promise upon the part of the defendant company, made to him when he took charge of the engine and repeated on the subsequent occasions, to repair the defect, had the effect of relieving him from the assumption of risk. He states in his evidence that he relied upon the defendant doing what its superintendent promised, and his conduct in inquiring about the receipt of the new throttle and the necessary fixtures to 'apply it to the engine corroborates him in this regard.
In Parfitt v. Veneer & Basket Co., 68 W. Va. 438, the law upon this question is laid down by this Court in the following language: “One of said instructions, covering the concrete case, properly told the jury, that if they found from the evidence that plaintiff ‘complained of the defective and dangerous condition of the machinery and appliances which he was operating, and that the defendant * * * promised to have the defects in said machinery remedied and the danger removed, but failed so to do within a reasonable time and in consequence thereof the injuries complained of were inflicted upon the plaintiff, then the defendant company is liable, and the jury should find for the plaintiff, unless the jury believe that the plaintiff failed to exercise reasonable care and caution in doing the work in which he was engaged, taking into consideration the plaintiff’s experience, or unless the danger was so palpable, immediate and constant that no one but a reckless person would expose himself to it, even after receiving such -promise or assurance. ’ ’ ’
The rationale of the doctrine'seems to be that, when the master, upon complaint by the servant of the defective condition of machinery or appliances, promises the servant to repair the same, he thereby assumes any risk, at least for a reasonable time, because of such defect, and relieves the servant from such assumption for such reasonable time. The master desires his work to proceed, and it may be well said that he is willing to take upon himself the additional risk of conducting it with the defective machinery in the belief that his interests are better promoted by keeping the work in progress than it would be by discontinuing the use of the defective machinery until,the repairs can be made. Dempsey v. Sawyer, 95 Me. 295 (49 Atl. 1035); Railroad Co. v. Holman, 90 Ark. 555 (120 S. W. 146); Swift v. O’Neill, 187 Ill. 337 (58 N. E. 416); Morden Frog & Crossing Works v. Fries, 228 Ill. 246 (119 Am. St. Rep. 428) (81 N. E. 862); Scott v. Parlin & O. Co., 245 Ill. 460 (92 N. E. 319); Altman v. Schwab Mfg. Co., 54 Misc. 243 (104 N. Y. Supp. 349); A. L. Clark Lumber Co. v. Johns, 98 Ark. 211 (135 S. W. 892); Brouseau v. Kellogg Switchboard & Supply Co., 158 Mich. 312, 27 L. R. A. (N. S.) 1052 (122 N. W. 620); Holmes v. Clarke, 6 Hurlst. & N. 349 (30 L. J. Exch. N. S. 135); McFarlan Carriage Co. v. Potter, 153 Ind. 107 (53 N. E. 465); Schlitz v. Pabst Brewing Co., 57 Minn. 303 (59 N. W. 188); Texas & N. O. R. Co. v. Bingle, 9 Tex. Civ. App. 322 (29 S. W. 674); Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573 (36 N. E. 572); Eureka Co. v. Bass, 81 Ala. 200 (60 Am. Rep. 152) (8 So. 216); Pleasants v. Raleigh & A. Air Line R. Co., 95 N. C. 195; Ray v. Diamond State Steel Co., 2 Penn. (Del.) 525 (47 Atl. 1017); Greene v. Minneapolis & St. L. R. Co., 31 Minn. 248 (47 Am. Rep. 785) (17 N. W. 378); Bruns v. North Iowa Brick & Tile Co., 152 Iowa 61 (130 N. W. 1083); Pavan v. Worthen &
From these authorities it seems to be well established that, where a servant complains to the master of defects in the machinery with which he is working, and the master promises to repair such defects, the servant will not be held to have assumed the risk of injury from an accident caused by such defects within a reasonable time after such promise to re-, pair. Many of the courts say that by making this promise the master entered into a new contract with the servant by which he agrees if the servant will continue in the employment with the defective machinery, that the master will assume any risk of injury because thereof, and it seems to us, both from reason and authority, that this is an intelligent reason for the rule. However this may be, the authorities, with little or no dissent, hold that the servant do@s not assume the risk of injury by continuing in the employment with defective machinery or appliances, which the master has promised to repair, until after the expiration of a* reasonable time within which to make such repairs. Applying this rule to the facts in this case we conclude that the plaintiff did not assume the risk of injury; that he had a right to rely upon the repeated statements of the superintendent of the defendant company that the repairs would be made to the engine; and that he did rely thereon is shown not only by his statements to that effect, but by his conduct as well.
The judgment complained of will be affirmed.
Affirmed.