73 W. Va. 792 | W. Va. | 1914
Here for the first time, an exception is taken to the neglect of the clerk of the trial court to dismiss the action for failure to file the declaration within three months after the return of the process executed agreeably to the requirement of see. 7 of chap. 125 of the Code. No motion to dismiss for that reason was made in the court below, and the issue was made up, after an unsuccessful demurrer, before the right of action would have been barred. As the court could have set aside the dismissal for good cause and re-instated the case, or a new action could have been instituted, the defendant was not prejudiced by the oversight on the part of the clerk, and presumably elected to waive its right to a dismissal. 1
On two grounds,' the sufficiency of the declaration is challenged, a claim of a higher duty on the part of the defendant than the law imposes and failure to aver due care for his safety on the part of the plaintiff. The first criticism is not well founded. The terms in which the duty of the defendant to safe-guard the plaintiff from “danger, risk, hurt or injury” are qualified by the phrase, “against which ordinary care
Employed as one of a crew or set of “roustabouts”, consisting generally of three or four members, whose business it was to visit the defendant’s oil wells in a certain district and, among other things, draw therefrom and replace the tubing and sucker rods, as occasion required, once or twice a month at each well, the plaintiff was injured by the breaking of what is known as a “tubing board,” used up in the derrick as a sort of platform on which a man or men work in disconnecting and connecting the joints of tubing and sucker rods, as they are drawn from the well and replaced in it. The tubes and rods are drawn up and lowered by mechanical power, and, as they come up, the sections or joints are disconnected by a man on the “tubing board” and set aside, and, as they are lowered back in the well, he aids in the connection of the sections or joints. In the derrick in which the plaintiff was at work, when injured, there was a “tubing board” at a height of 60 feet, consisting of two pieces of timber 2 inches by 10 inches, and at a height of about 50 or 52 feet another, consisting of one piece of timber 2 by 10 inches, each supported at the ends by girders of the derrick. Necessity for two boards at different heights at some wells is occasioned by a
The testimony of a witness, Ed Barth, relating to defectiveness of the board, was objected to on the grounds of self-contradiction, remoteness of time and its expression of an opinion. His credibility, brought in question by the contradictions as to whether he had ever examined the board and the dates of his examination thereof, was for the jury and did not render his evidence inadmissible. The alleged remoteness of his inspection depends upon his credibility also. Hence it is not available as ground of objection. As his opinion was founded upon a personal inspection of the board, if the jury believed he had inspected it, the authorities clearly sustain its admissibility. Though the board was fully described, the law nevertheless presumes inability of a witness to fully remember and state all the details of his- observation upon which his impression at the time was founded. State v. Pine, 56 W. Va. 6; Walker v. Strosnider, 67 W. Va. 39; Kunst v. Grafton, 67 W. Va. 20; Overby v. C. & O. Ry. Co., 37 W. Va. 525. There are many instances in which opinion evidence is properly excluded, but this seems to us to fall clearly within the exception to the general rule, recognized by the decisions here referred to.
Under the rule permitting proof of prejudice or bias of a witness, Kearns, who had been a fellow servant with Barth, testified that the latter had quit the service of the Company on account of personal difficulty between them. An offer was made to prove the difficulty had grown out of Barth’s failure properly to perform his duty as a servant, which the court excluded. In doing so, it did not err. It amply subserved the defendant’s purpose, to show Barth had quit its service on account of the difficulty between the two men. The tendency of the circumstance to prove bias against the company would not have been strengthened by a disclosure of the cause of the
An offer to prove the defendant had tendered the plaintiff a position as a pumper, after he had partially recovered, and ordered still lighter work to be given him, in the event of his inability to do pumping, was likewise rejected. An admission of the plaintiff that he had applied to agents of the company for work, before the suit was instituted, had been obtained from him, on cross-examination, and also that Chambers, one of them, had directed him to go to Swisher, the other one at a named place in the Company’s field, and that he had not applied to Swisher. In addition to this, Swisher was permitted to testify that in response to an inquiry from the plaintiff, after he had gotten out of the hospital, he had said, ‘ ‘ Clyde, I have never discharged you; I am still carrying you on my time book, and when you feel that you are able to go to work, you come back and I will have something for you to do.” Chambers was also permitted to testify to a conversation in which he had asked him if he thought he could pump and, after plaintiff had said he did not know, told him “to go there and Mr. Swisher would have something for him to do.” The further evidence offered, concerning this phase of the case, was an instruction from Chambers to Swisher to furnish the plaintiff work he could do, if there was such work in his department. The argument in support of this offer is that the evidence tended to prove the plaintiff was not totally incapacitated, but was able to do some work and could obtain employment. But it tends to prove no more than the opinion of the witnesses as to his capacity and their willingness to test it. If admitted, it would not have shown what he could do. Of course the extent of his injury and resultant incapacity was a subject of proper enquiry, and lack of impairment of earning capacity may be shown by proving such capacity, but the court may exclude evidence having no real tendency to prove it.
At the instance of the plaintiff, the court gave, over objections of the defendant, two instructions in abstract form Nos. 10 and 15, telling the jury, in effect, the master is liable for
There are exceptions to plaintiffs instructions Nos. 12, 1A and 18, the first and third of which are said to have imposed too high a degree of duty upon the defendant in that they state it as the duty of a master to provide reasonably safe and suitable machinery for the servant and, in the instant case, a reasonably safe, sound and secure tubing-board. They do not adhere literally to the rule of duty as declared by the authorities, but the inaccuracy of statement is thoroughly cleared up by instructions given at the instance of the defendant. For the purpose of the new trial to be allowed, they should be re-written and, in this respect, made to conform to the rule. No. 1A is abstract, makes no reference to the evidence and leaves it to the jury to determine questions of law as well as fact, saying: “If you believe in this case that 'the defendant company did that which an ordinarily prudent man would not have done under the circumstances, or left undone-that which an ordinarily prudent man would have done, which resulted in the injury complained of by the plaintiff, then the defendant is guilty of negligence.” This is entirely too general and indefinite, leaving it in the power of the jury to base its verdict upon anything it may deem a legal duty, provided it resulted in the injury complained of. Questions of law
A defense founded upon the plaintiff’s membership in a relief association known as the “Relief Association of the Employees of the South Penn Oil Company, ’ ’ to the support of which the defendant contributes largely, is urged in support of a peremptory instruction to find for the defendant, the motion to set aside the verdict and two instructions asked for and refused. If the plaintiff had been an adult, there is authority under which his right of action would have been barred, not by his contract, or agreement to release, constituting one of the articles of the association, but by his acceptance of the benefits to which he was entitled as a member. Graft v. R. R. Co., 8 Atl. Rep. 206; Johnson v. Phila. and R. Railroad, 163 Pa. St. 127; Ringle v. Senna. R. R. Co., 164 Pa. St. 529. Whether the doctrine of thése cases is sound we have no occasion to say, since the plaintiff here was an infant, when he accepted benefits and when his action was brought. Our primary question, therefore, is whether he could repudiate his agreement, assuming it would have been binding, had he been an adult. He was injured, May 28, 1910, brought his- suit Apr. 20, 1911, and received monthly benefits as a member of the association, until and including Nov., 1911, but none after
An English ease, Clements v. London, and Northwestern Ry. Co., 2 Q. B. (1894) 482, enunciates the doctrine that, if such a contract is, in the opinion of the court, beneficial to an infant member, it may elect to affirm the contract for him, in which event, he has no power to avoid it. Whether this is sound doctrine or not, we are under no duty to say, because the contract here involved cannot be regarded as beneficial. The beneficiaries were classified by the monthly wages paid them. Class 1 included persons receiving $75.00 per month or less; Class 2, those receiving more than $75.00 and not over $100.00; and Class 3, those receiving over $100.00. Plaintiff belonged' to Class 1 and was entitled, in case of injury, to $1.00 a day for 26 weeks and .50 cents a day for the next 26 weeks and nothing thereafter. This would make a total of less than $300.00 by way of compensation for a permanent injury, a sum so palpably inadequate and disproportionate that no judge or other person of ordinary intelligence, convinced of the liability of the defendant and acting for the plaintiff, would have accepted it for him. Regarding it from the stand point of an. association member before injury and seeing the possibility of injury or death in the service for which there Could be no recovery, with the right to benefits nevertheless, indemnity for one year in case of injury and $1,000.00, less the sick benefits paid, in case of death, the contract looks better, but still carries no more inedmnity than a member likely could have obtained from an accident insurance company by'the payment of a reasonable premium, without releasing his right of action for negligence resulting in permanent injury, a case not adequately provided for in the association articles. In this respect, the character of the contract depends upon circumstances not disclosed by the evidence and the burden of proof is on the defendant.
Complaint is made of the allowance of undue latitude to counsel in the argument of the case to the jury. The judge certifies but one ruling on one portion of it, however, saying the other exceptions were merely dictated to the stenographer and not brought to his attention. The exception upon which the court acted was taken to a statement of the attorney’s belief that the defendant was not soulless, but owned ‘ ‘ its men soul and body.” This remark was part of his argument against the credibility of certain witnesses who were, employees of the defendant, and carried no more than a deduction of his own from their testimony and demeanor on the witness stand. The jury could not have regarded it as any more than argument founded upon his construction of certain portions of the evidence. As it was not wholly foreign to the issue and evidence, the court properly overruled the exception. Since no ruling by the trial court upon the other portions of the argument complained of were obtained we are not authorized to pass upon them.
The important considerations underlying the prayer for a peremptory instruction and the motion to set aside the verdict, and not dependent upon conflicting evidence, have been sufficiently discussed in the disposition of other assignments of error. In that connection, enough has been said to show they are not conclusive and, as a new trial is to be awarded for error respecting instructions, we refrain from inquiry as to. the sufficiency of the evidence, agreeably to the general rule relating to that subject.
Reverse d and Remanded.