75 W. Va. 325 | W. Va. | 1914
The death for which recovery was had in this case, as one wrongfully occasioned by the defendant, resulted from the use of a trolley wire in the operation of an electric motor, after it had been detached from the hanger, by the breaking of a clip, and re-attached by a fellow servant of the decedent, in an unskilful and improper way, in consequence whereof the trolley jumped off at that point and the wire itself
A basic question in the case is, whether the duty of maintenance of the safety of the wire, it having been properly installed in the first instance, was expressly or impliedly charged by law upon the mine foreman, so as to make his failure to report it to his employer and cause the break to be repaired, as in other cases falling within his province, negligence on his part and, therefore, that of a fellow servant for which the master is not liable. The necessity of entering upon several other inquiries suggested in argument will depend upon the result of the one just stated.
Before entering upon it, however, it is proper to say the sufficiency of the evidence of proper installation, subsequent defectiveness by reason of use and wear and causal connection between the defect and the injury, to warrant submission of these issues to the jury, is clear. As originally put up, the wire had been successfully operated for a good while. A fellow workman, a motorman in charge of another motor, testified that, on the evening preceding the accident, he had found the wire down at the place thereof, and had tied it up to the hanger, so as to enable him to proceed with his motor and the load it was pulling. He said the clip which had formerly held it in place had worn out or broken. As reattached by him, its condition was such as necessarily interrupted the contact of the trolley wheel and caused it to jump off. On the next morning, two motors attached to each other and drawing a string of coal cars, started into the mine. Murphy was operating the foremost one and the decedent the other. When they reached the place of the accident, Murphy’s trolley pole jumped off, but did not injure him. Decedent’s trolley pole, following at a distance of only five or six feet, did likewise and the vibrating wire caught him about the neck, with the unfortunate results stated. Against this positive and direct evidence as to the facts, nothing is relied upon except mere conjecture and surmise as to other modes of injury, consistent with requisite care on the' part of the master, or contributory negligence on the part of the decedent.
The extensive use of electrical machinery and appliances
However, an affirmative answer to the question submitted has not beeen given by any decision of this court. On the contrary, some of them rather assume the duty of maintenance of safety of appliances and machinery of all kinds Tests upon the mine operator, except in so far as it has been devolved-upon the mine foreman in express terms or by fair implication. In Mitchell v. Coal & Coke Co., 67 W. Va. 480, the company was held liable for an injury occasioned by defective insulation of a motor, not upon the theory of defective insulation at the time of installation in the mine, but generally. The evidence tended to prove adequate insulation at that time and subsequent defectiveness by reason of use. Cheeks v. Virginia-Pocahontas Co., 82 S. E. 756, proceeds upon the same assumption. There the injury complained of was occasioned by a defective mine-car step. In neither of these cases, did the court enter upon any extensive inquiry as to the construction of the statute, but, in Humphreys v. Raleigh C. & C. Co., 73 W. Va. 495, 80 S. E. 803, the following proposition was declared as the limitation upon the statutory duties and responsibility of the mine foreman: “The mine foreman statute of this state does not absolve the mine owner or operator from his common-law duty to exercise reasonable care to provide reasonably safe machinery, tools, and appliances for use in the mine, and make the mine a reasonably safe place for work, except in so far as the duty
This view of the statute harmonizes with observations found in all the leading cases in which the master has been accorded immunity by virtue of the statute. Nearly all of them contain expressions of limitation of the mine-foreman’s duties to those things in respect of which he is charged with duty by some terms found in the statute. Williams v. Thacker C. & C. Co., 44 W. Va. 599; Squilache v. Tidewater C. & G. Co., 64 W. Va. 337; Bralley v. Tidewater C. & C. Co., 66 W. Va. 278; Helliel v. Piney C. & C. Co., 70 W. Va. 45; Peterson v. Collieries Co., 71 W. Va. 334; May v. Davis C. & C. Co., 71 W. Va. 220. A consideration almost conclusively establishing the soundness of this construction is this: The statute transfers liability which the common law would impose upon the master, to the shoulders of the’ mine-foreman and abrogates the common law right of action of the injured servant against the master. The imposition of liability upon the mine-foreman is in derogation of his common law right of service without it, and the abrogation of the injured servant’s right of action against the master is in derogation of his common law right as a citizen and employee. Hence, the statute ought not to, and cannot, consistently with the rules of construction, have effect beyond that clearly indicated by its terms. Harrison v. Leach, 4 W. Va. 383. Statutes are not always permitted to operate to the extent of the express terms used. Reeves v. Ross, 62 W. Va. 7; Conley & Avis v. Goal & Coke Ry. Co., 67 W. Va. 129; Bank v. Jacobs, 74 W. Va. 525, 82 S. E. 320. Under no rule or principle, now recalled, can a statute dealing with rights of so substantial and. high a nature have operation and effect beyond the scope indicated by the terms used.
A careful examination of the statute in question fails to disclose the use of any words therein indicative of intent to place the duty of inspection, oversight and repair of such mining machinery and appliances as those here involved upon
The period of time intervening between the breaking of the clip and the occurrence of the injury does not appear. Its defective condition Avas discovered the evening before the accident, by a fellow workman, but there is no proof as to when the break occurred. It may have taken place several hours, even days, earlier. Under the conclusion stated, there Avas a duty upon the master to inspect the wire and other similar machinery and appliances, as a matter of precaution for the safety of the decedent and other employees using them, and it had a period of about eighteen hours in which
Although there was really no evidence of contributory negligence on the part of the decedent, the instructions given at the instance of the plaintiff, recognized it as a defense interposed, and accorded in all other respects with the principles and conclusions here stated. The phrase, “reasonable care, ’ ’ used in each of them, is emphasized by the word “all,” and that is made a ground of exception to them, but it made no perceptible change of meaning, and could not have misled the jury. Defendant’s instruction No. 6, refused by the court, was vitiated by its assumption of the existence of evidence tending to prove latency of the defect in the wire. There was no such evidence. Inspection would have readily disclosed either the break or the improper attachment.
The request for a direction to find a verdict for the defendant and the motion to set aside the verdict raise the same question, sufficiency of the evidence to sustain the verdict. That the connection of the wire with the hanger was improper and such as would inevitably throw the trolley pole off the wire is fully established. The trolley pole of the decedent’s motor jumped off at that point and he thereupon instantly came in contact with the wire. Nobody could tell exactly what the causal connection between these occurrences, if any, was, but they apparently constituted a single inseparable transaction occasioned by the improper attachment. In our opinion, such a state of facts made an issue proper for jury determination.
Failure to allege the appointment and qualification of the plaintiff as administrator made the declaration bad on demurrer and the court erred in holding it sufficient. A nunc pro tunc order, entered since the writ of error was allowed, says this defect was not assigned as a ground of demurrer.
The judgment will be reversed and the case remanded, with directions to permit an amendment of the declaration, and try the issue on the matter of the amendment, if any, render judgment on the general verdict, if no plea to such new matter shall be entered, or the verdict on such issue shall be for the plaintiff, and set aside the general verdict, if such issue shall be made and a special verdict for the defendant found.
Reversed and remanded for limited new trial.