80 W. Va. 295 | W. Va. | 1917
Plaintiff, Henry Cox, recovered a judgment for $15,000 against the defendant, United States Coal & Coke (¡Company, a corporation, in an action for personal injury, and it has brought the case here oii writ of error. Defendant’s demurrer to the declaration was overruled. It then pleaded the general issue and tendered two special pleas, averring, in substance, that it was an employer within the meaning of the act of the legislature known as the Workmen’s Compensation Act; that, at the time of his injury and for sometime prior thereto, plaintiff was one of its regular employees within the meaning of said act; and that defendant had, in all respects, complied with the provisions of said act and was entitled to all its benefits. Issues were joined and the case was tried by a jury, resulting in a verdict and judgment for plaintiff.
The facts and circumstances surrounding plaintiff’s injury, as ivell as the cause thereof, are not disputed. Defendant was engaged in mining coal and manufacturing coke and employed several thousand men. It operated three mines on Tug River in McDowell county. About the last of January, 1916, plaintiff was employed as a day laborer to work in defendant’s mine No. 11, and had worked four or five days next prior to the 5th of February, on which day he was injured. He did not go to work on that day, and his explanation for not doing so is, that he got up late and did not get his breakfast in time to get to the mine opening by seven o’clock and thought it was a rule of the coal company not to admit an employee into the mine, to work on the day
At the conclusion of the evidence the court gave the following instruction at the request of plaintiff: “The court instructs the jury that, it appearing from the evidence in this ease that the plaintiff was not in the service of the defendant
Defendant objected and excepted to the giving of this instruction, and asked for eight other instructions on its behalf all of which, except its No. 2, the court refused to give, and it again excepted. Its No. 5 is the antithesis of plaintiff’s No. 1, and is to the effect that defendant was entitled to the protection of the workmen’s compensation act and plaintiff could not recover. If it was proper to give plaintiff’s No. 1, of course it was not error to refuse defendant’s No. 5. Thus is presented the clear cut legal question, whether, under the undisputed facts and circumstances of this ease, defendant was shielded from liability to plaintiff by the workmen’s compensation act? That defendant is an employer, within the meaning of that act, and had complied with all of its provisions are admitted, and its counsel insist that, although plaintiff’s injury was not received in the course of, and did not result from his employment, still he was defendant’s employee, and section 22 of the act relieve it from liability, the relation of employer and employee not having been severed at the time of the injury. There is no evidence whether it was plaintiff’s purpose to return to work on the next work day if he had not been hurt. But for the purpose of deciding the question presented it may be assumed that such was his purpose. Section 22 of the act is as follows:
“Any employer subject to this act who shall elect to pay into the workmen’s compensation fund the premiums provided by this act, shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after such election and during any period in which such employer shall not be in default in the payment of such premiums; provided, the injured employee has remained in his service with notice that his employer has elected to pay into the workmen’s compensation fund the premiums provided by this act. The con
And section 9 of the act defines the terms, employer and employee, the latter as follows: “All persons in the service of employers as herein defined, 'and employed by them for the purpose of carrying on the industry or business in which they are engaged, (casual employment excepted), are employees within the meaning of this act, and subject to the provisions hereof. ’ ’ Then follows a description of who are not employees, within the meaning of the act, which has no bearing on the question here presented. One of the primary purposes of the workmen’s compensation act was to provide pecuniary protection to employees and their dependent families, in case of their personal injury, received in the course of and resulting from their employment. It matters not whether the injury is the result of a mere accident, or is occasioned by a negligent act of the employer which would render him liable at common law, the only essential condition entitling the injured employee to be compeñsated out of the fund being that the injury must occur in the course of and result from his employment. Another very important purpose the legislature had in view in passing the act was to relieve the employer from personal liability to the injured employee in those cases wherein he would have been liable at the common law on the ground of negligence in the performance of his' duty to his servant. It is clear plaintiff was not injured in the course of his employment, and, therefore, he has no right to demand compensation out of the workmen’s compensation fund. But it was surely not the purpose of the legislature to relieve an employer from liability for a negligent act causing injury to one of his employees who happens not at that particular moment to be engaged in performing labor for him. The construction of the statute contended for would destroy a long existing common law right without giving anything in return therefor. It would be both unwise in policy, as tending to promote carelessness among employ
It is insisted that plaintiff was trespassing on the Norfolk & Western Railway’s tracks, and defendant owed him no duty to lookout for him, and is liable only in case it wilfully and wantonly injured him. There is no proof that the act was wanton and we do not think the fact that plaintiff may have been a trespasser, as between himself and the railway company, can affect defendant’s liability. That defense would only apply in case plaintiff was a trespasser upon the property of defendant. “To relieve one from liability on the ground that the injured person is a trespasser, the premises must belong to the person whose negligence is complained of.” 29 Cyc. 443. On the other hand, we read from the same book: “One who uses his premises so negligently as to injure a person on adjoining premises is liable for injury
In throwing the lump of “bone” upon the railroad track defendant was likewise a trespasser. It can not rely on plaintiff’s trespass in defense of its own wrong. Norris v. Litchfield, 35 N. H. 277, 69 Am. Dec. 546. If the lump of bone had been cast upon a track-walker or section-hand of the railroad company who might have happened to be passing, at that instant, in pursuit of his regular employment, and he had been injured as plaintiff was, no one would question defendant’s liability for an instant. Is not its liability in the present case similar, and must it not be determined by the same principles? That defendant, through its chief engineer' and servants, knew that pedestrians frequently passed up and down the railroad track, is fully proven. It, therefore, must have known that heavy lumps of slate and bone thrown from the car at the tipple, down upon the railroad track, were liable to strike and injure some person. Therefore it was its duty to keep a reasonable look-* out to avoid injury to persons who happened to be passing by on the track. Although it had a license to occupy a portion of the railway company’s right of way with its switch and tipple, it does not appear that it had a right to throw material upon the main line. It is held, even where a way has been much used by the public without express permission, over a defendant’s own premises, he is, nevertheless, liable if he obstructs the way in such a manner as to cause injury to a person in the nighttime, who has no knowledge of the presence of the obstruction. DeTard v. Heim, 62 Kan. 188; and Rooney v. Woolworth, 78 Conn. 167.
The defense of plaintiff’s contributory negligence in failing to observe the work that was going on at the tipple while he was walking on the railroad track, was properly submitted to the jury by defendant’s instruction No. 2 which was given. Its No. 1 is a peremptory instruction, and all the
In view of the nature of plaintiff’s injury and the permanent effect the evidence tends to prove it has had on his capacity to work, we can not say the verdict is excessive, and the judgment is affirmed.
Affirmed.