34 W. Va. 533 | W. Va. | 1890
Charles Comer having recovered a judgment for five hundred dollars against the Consolidated Coal & Mining
The action sought damages for a burn received by Comer from a discharge of a blast, while mining coal in the defendants’ mine, the misfortune being, as he claimed, attributable to the ignition from the blast of fire-damp, negligently suffered to accumulate in the- mine for want of ventilation in violation of law, particularly of Acts 1883, c. 70, s. 10 (Code 1887, p.978). The defence, among other things, was that there was no such fire-damp, or inflammable gas, in the mine, and that the accident came only from the powder-blast, while the plaintiff'stood too near it, and that plaintiff was not an employe. There was a considerable volume of evidence tending to sustain these contentions. We have not the help of a brief for the appellee. The defendant complains of the refusal of his instructions Nos. 4 and 5.
Let us take up No. 4, which is as follows : “If the jury find from the evidence that the plaintiff was injured by the firing of a blast in the course of his employment, and the evidence as to the manner of his receiving such injury should leave it .doubtful whether the injury was the result of imprudence and recklessness on the part of the plaintiff in exposing himself to the effects of the explosion of the powder, or whether it was the result of negligence on the part of the defendant in permitting explosives and inflammable gasses to accumulate in that part of the mine where the injury was received, then the burden of proof is upon the plaintiff to show that the injury was the result of the latter cause, and not of the former.”
Certain principles pertinent to this action are settled. One is that the burden of showing the negligence of the defendant, pleaded as the cause of action, rests on the plaintiff. Cooley, Torts, 673; Johnson v. Railroad Co., 25 W. Va. 577. After the plaintiff has met this requirement by showing negligence of the defendant causing him injury, and not until then, the plaintiff may rest until the defendant answers it. The defendant may meet a case satisfactorily proven on the part of the plaintiff by showing contributory negligence on the part of the plaintiff' as the
Then, as to instruction No. 5, which is as follows: “If the jury find from the evidence that the plaintiff’might have been injured by the explosion of the powder, resulting from his negligence and carelessness in exposing himself to the effects of it, then the jury should find for the defendant, unless they further find that the preponderance of evidence shows that he was not so injured, but was injured by an explosion of gas improperly allowed to accumulate in that part of the mine where the plaintiff was injured by the negligence of the defendant.” The defence contended that there was no gas in the mine, and the burn -was solely attributable to the powder-blast, and from the plaintiff’s carelessness in standing too close to it; in other words,that it came from the blast, and not from the gas, which was alone sufficient to defeat the plaintiff, and that the plaintiff was guilty of standing too near. The plaintiff contended that it was caused solely by the gas flame. Now, the defendant had a right to present these competing'theories to
As the case goes back to the Circuit Court for another trial, we make no reference to the facts on the motion for a new trial, based on the ground that the verdict was contrary to the weight of evidence. On another trial instruction No. 5, if asked for, is to be given. The judgment is reversed, the verdict set aside, a new trial granted, and the case remanded for such new trial.
REVERSED. Remanded.