117 Va. 645 | Va. | 1915
delivered the opinion of the court.
Jewell Cruise was killed by a runaway car in a mine owned and operated by the Clinchfield Coal Corporation. His administrator brought this action alleging that his death was due to the negligence of the company, and recovered a judgment for $6,000 to which this writ of error was. awarded.
The accident occurred in January, 1911, and the case is not in any way affected by the provisions of the mining act of 1912.
At the conclusion of the evidence on both sides the defendant demurred thereto, but the court overruled the demurrer and entered judgment in favor of the plaintiff for the damages fixed in the conditional verdict of the jury. This action of the court is assigned as error.
The material facts, giving to the plaintiff, in accordance with the rule, the benefit of the most favorable interpretation of the evidence, may be stated as follows: The plaintiff’s intestate, Jewell Cruise, was a young man about 20 years of age. He was an experienced coal miner, having been at work in coal mines for five or six years, in various
On the day of the accident two cars had been placed in room No. 7 to be loaded by a miner at work there, whose name was Charlie Williams. Room No. 7 turned off to the right from the air course. The track ran out of this room on a descending grade of from eight to ten per cent. The brakeman who cut these cars loose from the motor and scotched them was Bert. Cruise, a cousin of Jewell Cruise, and an experienced miner and brakeman. He tried the brakes but they would not work, and he made the cars as safe as he could with a crosstie, believing at the time he had made them entirely secure. These same cars had been in this room earlier in the day, were loaded while scotched with the same tie in the same way, and had stood there until the motor came for them. He had never scotched cars in any other way in that room. Charlie Williams, the miner who loaded them, also examined the scotch and thought it would hold. There were more props in the room if they had been thought necessary.
Jewell Cruise, the plaintiff’s intestate, came into room 7. on his way to dinner, as he frequently did, spent about ten minutes with Williams, who was his uncle, looked into the car the latter was loading, and was around and near the cars all the time he stayed there. Leaving room No. 7, he went home for his dinner and was hurrying back to work when he was killed. His body was found under one of the two cars above mentioned, which a few moments theretofore had, from some unknown cause, escaped from room 7 and run out into the air course. What caused the
This brings us to a point at which, before dealing further with the facts, a statement of the theory on which the plaintiff seeks to recover will be appropriate and helpful in reaching a proper decision. His theory, or theories, may be summarized in an extract which we here quote from the brief aforesaid as follows: “(1) The defendant was negligent in failing to promulgate, and bring to its employees’ notice, rules and regulations for spragging, stopping or braking its cars when left in a room without the motor; (2) in failing to provide adequate brakes, proper check blocks, sprags or braces; (3) an unsafe place to work or go to and from work at the mouth of room 7; (4) that the switch leading from the air course to room No. 7, upon which the cars were run, was dangerously con
A careful consideration of each of these alleged acts of negligence on the part of the defendant company leads us to the conclusion that there can be no recovery for the plaintiff upon either of them. A brief discussion of these grounds in their order will, we think, show that this conclusion is correct.
(1) Assuming, but not admitting, that in so simple a matter as the scotching of a mine car to hold it in place while being loaded, there was a duty upon the defendant company to promulgate rules, the fact remains that the lack of such rules and the uniform practice and method of doing this work in that mine were matters necessarily within the actual knowledge of the decedent. The record leaves no room for doubt or dispute upon this point. There is no hint that he ever made the slightest protest, and it therefore plainly follows that he assumed the risk of any dangers incident to such lack of rules and to such method of work. Parlett v. Dunn, 102 Va. 459, 464, 46 S. E. 467; Southern Ry. Co. v. Foster, 111 Va. 763, 768, 69 S. E. 972; Moore Lime Co. v. Richardson, 95 Va. 326, 335, 28 S. E. 334, 64 Am. St. Rep. 785; I Sherman & Redfield on Neg. (6th ed.), sec. 214-a, and authorities cited.
It is equally plain that the second ground of negligence upon which the plaintiff relies is not sufficient to sustain a recovery. There was no failure to furnish the kind of instrumentalities commonly used and relied upon in this mine for scotching cars. If these instrumentalities were
The remaining grounds of negligence set out in the analysis above quoted from the brief of counsel for plaintiff, namely, (3) the unsafe place in which to work and to go to and from work, (4) the proximity of the rib to the track on the right, with a dangerous wire on the left, and (5) the failure to guard the wire, may be considered together.
If it be conceded that the defendant company was negligent in each of these particulars, the dangerous condition resulting from such negligence was permanent and was perfectly open and obvious to a miner of any experience. Jewell Cruise knew, or ought to have known, all about the very conditions for which his administrator now seeks to hold the defendant company liable. It would be difficult to concéive of a case in which a miner could have a better
We are of opinion, therefore that the case is clearly with the plaintiff in error upon the doctrine of assumed risk, even if all that the defendant in error claims be true as to the negligence of the company.
“Where all the conditions exist essential to support the defense of risk of the master’s default having been assumed by the servant, viz., knowledge of the defect in
Whether an employee has assumed the risk of dangers incident to his employment may be and often is a question for the jury, but not where, as here, the alleged causes of the dangers are so open and obvious and the knowledge or opportunity for knowledge on the part of the employee so complete as to leave no doubt that he knew or ought to have known all about them. In such a case the assumption of the risk as a question of law bars the recovery and is not a question for the jury. 26 Cyc. 1481-2, and cases cited in note 78.
There is another view of the case, .however, which is also conclusive against the defendant in error. If we concede that the proximity of the right wall of the air course near the mouth of room 7 might have been unknown to Cruise, and that this condition was due to the negligence of the defendant, this negligence is not shown to have been the proximate cause of the injury. To see that this is true, it is only necessary to recur to the plaintiff’s own theory as to how the accident actually happened. As shown above the claim is that the decedent was thrown “against the trolley-wire and carried down near the mouth of No.
The fact that the cars escaped from room 7 can, in no view, aid the plaintiff’s cause. If their escape was due to unsafe rules and methods, and to lack of brakes on the cars, these were not, as we have seen, causes of which Cruise could complain. If the cars were insufficiently scotched, or if the scotch was removed, the fault was that of a fellow servant.
Once again, conceding that Cruise was ignorant of the conditions in the air course, and that this fact did contribute to his death, the defendant company cannot be held liable because it was not bound to foresee and provide against the unusual and improbable thing that occurred. The usual thing, the use of the air course as a haul-way operated by a motor and cars, with a motorman and brakeman carrying lights and keeping the cars under control, was going on all the time, and the evidence leaves no room to believe that Cruise would have been injured at all, or have been in any unusual danger if he had met a regular trip of cars at the point where he encountered those that ran away. It is the probable and not the improbable danger which the employer must foresee. Va. I. C. & C. Co. v. Kiser, 105 Va. 695, 705, 54 S. E. 889; Persinger v. Alleghany, &c. Co., 102 Va. 350, 355, 46 S. E. 325.
We are clearly of opinion that there can be no recovery upon any view of the evidence, and this conclusion renders it unnecessary to consider the other assignments of error.
The judgment complained of will be reversed, and this court will enter the judgment which the circuit court should have entered.
Reversed.