133 Va. 534 | Va. | 1922
delivered the opinion of the court.
J. P. Edwards, while at work in a mine operated by the Laurel Branch Coal Company, was accidentally killed by coal which fell in on him either from the side or the top of the mine. In this action by his administrator for damages, there was a verdict for the company, upon which the court entered the judgment under review.
The declaration alleges at great length a number of breaches of duty on the part of the defendant, but in the light of the evidence the only material allegations are those which charge that the plaintiff’s decedent was an inexperienced miner, unacquainted with the ordinary dangers incident to mining coal, and also unfamiliar with certain unusual and extraordinary dangers peculiar to such work in the company’s mine and known to it, and that the company failed to comply with its legal duty in warning and instructing him. The other alleged breaches of duty may be disregarded. The particular danger which resulted in the decedent’s death developed in the course of work which he could constantly observe as it progressed, and which in a sense he was helping to perform. As stated in the brief of plaintiff’s counsel, the danger was such as that “an experienced miner would have known it at a glance.” If he was an experienced miner, and was properly informed of any unusual dangers, the injury could not have happened to him without such carelessness on his part as would have barred any right of
The accident occurred in July, 1918. The duties of the defendant to warn and instruct the employees in its mine, whether such employees were experienced or inexperienced, are defined by statute. Acts 1912, chapter 178, section 6, p. 421; Code 1919, section 1840. These statutory duties are somewhat fully discussed in Clinchfield Coal Corporation v. Hawkins, 130 Va. 698, 108 S. E. 704. As specifically stated in the statute they are as follows:
“It shall be the duty of the mine foreman or assistant mine foreman of every coal mine in this State to see that every person employed to work in such mine shall, before beginning to work therein, be instructed as to any unusual or extraordinary dangers incident to the work in such mine, which may be known to or could reasonably be foreseen by the mine foreman or assistant mine foreman. * * *
“Every inexperienced person so employed shall work under the direction of the mine foreman, his assistant, or such other experienced worker as may be designated by the mine foreman or assistant until he had had reasonable opportunity to become familiar with the ordinary dangers incident to his work.”
The plaintiff’s decedent was about twenty-three years of age and was well developed physically, although not entirely robust. He was a good and capable worker,- and had saved some money from his wages as a laborer on a farm and on public works, but had no experience as a miner prior to his employment in the defendant’s mine. He had been engaged there for about two weeks before his death. In point of intelligence he was probably slightly under the aver
Some of the evidence tended to show that there are dangers incident to mining for the defendant not usual in other neighboring mines. For example, one witness stated that “this coal at this place in the Widow Kennedy (referring to the name by which the seam of coal in the defendant’s mine was known) is all broken, and is deposited in slips, and slides, and pieces of all sorts of shapes and placed in all sort of positions, and very often is not clean, but has dirt in it. An experienced miner can detect where these slips or slides are in this coal both by sounding it, and by the sight. You can see the crevices or seams where the water has
John Edwards testified that he had begun to notice some difference in the Widow Kennedy seam as compared with other coal with which he was familiar but had not discovered that it was more dangerous than the coal in other mines until after the accident. He undertook to explain his lack of experience and his inability to appreciate the peculiar dangers in the defendant’s mine by saying that, while he had been a miner for about a year, the previous mining which he had observed and participated in was carried on by machinery which cut the coal down, and that he had never worked before in “solid coal like that.” He further testified as follows: “It (the coal) was sitting in all- kinds of slips and every kind of way nearly that could be thought of; setting in all kinds of shapes, slipping and sliding every way, and it was wet. An experienced miner • can tell where these slips are. I have learned that since.”
John Edwards and Dave Edwards (the latter being another brother who worked with John and Josh Edwards) both testified that neither of the three were ever warned or instructed as to • the peculiar dangers in the Widow Kennedy seam, and that no instructions of any kind were given to the decedent by the mine foreman or his assistant.
The coal was ten or eleven feet high where the accident occurred. The plaintiff’s decedent and his brother, John Edwards, were loading a coal car, the former standing on the left and the latter on the right of the mine track when the coal fell on the decedent. The plaintiff contends this coal slipped out of what
John Edwards and his brothers left the mine that evening without going back to see the result of the shot. Dave Edwards for some reason quit the employment of the company that night, and did not thereafter return. When John Edwards and the decedent returned to work the next morning they found that the shot had blown out, and before going to work John Edwards inserted a ten foot steel bar in the hole to see if the coal was loose, but he was unable to prize it down. There was other coal which had previously been shot down from the heading just in front of where the hole had been made and fired, and it was this coal which John and Josh Edwards were loading into the ear when the accident happened.
1. The first assignment of error is that the court refused the plaintiff’s motion to require the defendant to make more specific its grounds of defense in respect to the alleged assumption of the risk by the plaintiff’s decedent. We do not find from the record that any such motion was ever made by counsel or acted upon by the court.
2. The defendant was required, on motion of the plaintiff, to file grounds of defense, and among them was this: “Contributory negligence of plaintiff’s intestate, Joshua Edwards, causing his injuries.” Thereupon the plaintiff moved the court to require the defendant “to plead said contributory negligence as required by the statute,” and the defendant then filed the following so-called “plea of contributory negligence”:
“(1) That the coal which fell on Joshua Edwards was a top coal hanging over the right rib in said mine, which had been undercut by said Joshua Edwards.
“(2) That the said John Edwards and Joshua Edwards were notified to take down this overhanging coal and they, the said John Edwards and Joshua Edwards, the said Joshua Edwards being a servant of and working for the said John Edwards, put a shot or blast in said coal causing the same to become loose, and instead of pulling down said overhanging loose coal, they with knowledge of the danger, having been warned, and also the danger was so apparent the defendant,
“And, whereas, for the many reasons above stated, the injury to the said John Edwards was due solely to his own gross and contributory negligence and the defendants ask that this suit be dismissed.”
The order of the court entered at the time the foregoing paper was filed shows that it was objected to “because as prepared it did not show contributory negligence, but that the plaintiff was the sole party guilty of negligence;” and the bill of exceptions signed inore than a year later certifies that the objection was “because the same was not specific enough,” and that the plaintiff “thereupon moved the court to strike the same from the record because not specific enough and because the same did not conform and measure up to the requirements of the statute, requiring such defense to be specifically pleaded.”
Reading these two parts of the record together, and considering them in the light of the plaintiff’s brief which accompanies and explains the assignments of error, it appears that the assignment here under consideration presents two objections to the so-called plea — first, that it was not sufficiently specific to meet
Neither of the objections is good. As to the first, a mere reading of the specifications will show that they meet any but the most hypercritical test in giving the plaintiff notice of the contributory negligence relied on by the defendant. As to the second objection, the statute was not intended to compel a confession of the defendant’s primary negligence as a condition precedent to reliance upon the plaintiff’s contributory negligence. To be sure, the question of contributory negligence cannot arise until the negligence of the defendant has been established, but it has always been true, and is still true, that a defendant may at one and the same time claim that the plaintiff has no right to recover because he has failed to prove negligence on the part of the defendant, and, in the alternative, that even if the defendant was guilty of negligence, the plaintiff cannot recover because his own wrongful conduct efficiently contributed to the injury. The only purpose of the statute was to require the defense of contributory negligence to be set out in advance of the trial in such way as to give the plaintiff reasonable notice of the character of proof which it would have to meet and overcome in combating such defense.
3. The next assignment is that the court ought to have set aside the verdict as contrary to the law and the evidence. From what has already been said in the statement of the evidence, it is clear that the case is one which depended upon the weight and credibility of testimony. We cannot say that the verdict was contrary to the law or the evidence. The jury evidently credited the evidence of the defendant, and in that view of the case the verdict was clearly in accord not only with the evidence but with the law.
(a) Instruction No. 1 asked for by the plaintiff, so far as material here, is set out below, except that the court interlined the italicized words appearing therein:
“The court tells the jury that, if they believe from a preponderance of the evidence in this ease, the deceased, J. P. Edwards, was inexperienced in working in coal mines, then it was the duty of the defendant, if it knew, or could have known by inquiry of his inexperience, to only allow him to work under the direction of the mine foreman, the assistant mine foreman, or such other experienced miner as was designated by the mine foreman until the deceased had a reasonable opportunity to become familiar with the ordinary dangers incident to the work to which he was assigned.”
It is insisted that the italicized language was erroneously inserted, because it placed an unwarranted limitation on the provisions of the mining act, as now found in section 1840 of the Code of 1919, set out above. In other words, the contention here made is that knowledge on the part of an employer of the inexperience of an employee is, under the terms of the statute, immaterial, regardless of any diligence on the part of the employer to ascertain the facts in that regard. This is not in accord with our view. The statute in question merely changed the common law with respect to instructing inexperienced miners so as to provide a practicable and effective method of imparting the necessary instruction. Clinchfield Coal Corporation v. Hawkins, 130 Va. 698, 704 108 S. E. 704. The common law rule is that when a. person seeks employment in any particular department of labor, he thereby represents himself to possess the necessary experience and learning. 3 Lab. M.
In this particular ease there was evidence tending to show that the decedent, although employed through the agency of his brother, was solicited by the latter to come to work at the request of a duly authorized representative of the defendant. If this was true, then the presumption of inexperience, according to some authorities, did not arise, and it might in that event have been the duty of the defendant to exercise due care to inform itself reliably upon the subject. But in any view of the question here under consideration, we see no valid ground upon which the plaintiff, in the light of the evidence, could object to the language used by the court in the foregoing instruction. It is not denied that Josh Edwards was an inexperienced miner when he first began work. The defendant either knew that fact or could have easily ascertained it by inquiry of his brother who was and had been for a year working for it. The instruction, therefore, was not affected in the least degree by the addition of the italicized words.
(b) Instruction No. 2 offered by the plaintiff and refused was to the effect that if the jury believed that Josh Edwards was inexperienced in mine work, “then the defendant owed him the duty of warning and instructing him in any danger which. they or either of them, or their mine foreman or assistant mine
There was no error in refusing this instruction. The company’s legal duty to instruct the decedent, whether he was experienced or inexperienced, was sufficiently covered by plaintiff’s instructions 1 and 3. By No. 3 the court told the jury that if Josh Edwards “was an inexperienced man in coal mining, then it was the duty of the defendants, either in person or through their superintendent or mine foreman, to warn and instruct the deceased in any and all unusual dangers known to them, or which should by the exercise of ordinary care have been known to them or either of them.” The same duty would have been owing to an experienced miner; and this, with the statement of the defendant’s duty to inexperienced miners, as contained in instruction No. 1, already set out, covered fully the statutory duty of the defendant as to instructing its employees.
(c) The plaintiff asked for Instruction No. 6, shown below, which the court gave after first striking out the parts thereof shown in italics:
“The court tells the jury that it was the duty of the defendant to examine the place where the deceased was required to work, and after having inspected to use reasonable care to remove or secure all loose coal overhead in the place where deceased was required to work, so as .to prevent danger to the deceased and other persons working in the said place, and this duty they could not place upon the miner, as it was the defendants’ personal duty to perform, either themselves or through their mine boss, and any request to any miner to do so was not sufficient to relieve them of their liability in case of injury resulting therefrom.”
The court did not err in making the deletions complained of. The mining act (Acts 1916, p. 773-4, Code,
(d) The plaintiff offered the following instruction, designated as No.7,which the court refused to give:
“With reference to the duty of the defendant to instruct persons employed, it is not sufficient to relieve the defendant that he instructed the deceased (if they should believe any instructions were given), and that the deceased had capacity to understand, but it must appear from the evidence that the deceased did understand the instructions and that they were being given for his protection, and that he appreciated any danger which would result if he did not obey the instructions.”
“Stated in the most general terms the extent of the master’s obligation in regard to imparting information to a servant is to give him ‘such instruction as will enable him to avoid injury.’ If the master relies on the fact that he admonished the servant of the danger which caused the injury, he must show that the warn
The rule as above stated by Labatt is necessarily sound because the reason for the rule is that the master must not place the servant in a position in which he cannot adequately care for his own safety. No instructions are requisite when the employee knows, or by the. exercise of ordinary care may know, the dangers of his employment. Swift & Co. v. Hatton, 124 Va. 426, 439, 97 S. E. 788.
We are not prepared to approve the instruction as it was offered because, unless restricted to the ease of a minor or a mentally deficient person, it states the duty too strongly, in that it requires the employer to insure attentiveness to and understanding of a clear and adequate instruction given to an employee of lawful age and ordinary intelligence. The law does not require this, but permits an employer to assume that a grown person of ordinary sense will understand and heed instructions and warnings which are aptly and clearly given.
(e) The plaintiff asked for an instruction which told the jury in effect that where there is a safe and an unsafe way for the performance of the work in hand, it is the duty of the servant to adopt the safe way if
There was no necessity for either of these instructions. Both of them ought to have been refused because neither of them had any proper application to the case. Strictly speaking, there were no two ways for the plaintiff to do the work of loading coal into the car with a shovel. Of course it is true that loading the coal was part and parcel of the mining which the plaintiff’s decedent and his older brother were carrying on, and it may be said that in a sense it was “an unsafe way” to work in the place while exposed to falling coal. The danger, however, was not so directly connected with the actual loading of the coal as that either instruction No. 9 asked for by the plaintiff or instruction No. 5 given for the defendant contained a very apt expression of the law. The question was whether the deceased had been given sufficient opportunity to know the danger of working in that place and this question was fully covered by other instructions which have already been set out in the course of this opinion.
(f) The court modified and then gave instruction No. 10, asked for by the plaintiff, and complaint is made of the modification, but it was plainly unimportant and inconsequential, and will not be further noticed.
(g) Instruction No. 11, offered by the plaintiff and refused, told the jury in effect that if the defendant failed to comply with the mining law (now found in Code, section 1840) in respect to instructing Josh Edwards, before he began work in the mine, as to any unusual and extraordinary dangers therein, pr, if he was an inexperienced miner, in respect to the superintendeney and direction of his work by an experienced miner until he had been afforded reasonable opportunity to become familiar with the dangers incident to the work, his injuries, if received by him in the course of the employment, must be regarded as having been proximately caused by such violation of the statute.
In support of the legal proposition asserted in this instruction, counsel for plaintiff cite Miller Mfg. Co. v. Loving, 125 Va. 255, 99 S. E. 591, and Standard
In Vol. 7 of the same work (White’s Supplement 1907), section 10, page 3, it is said: “The doctrine that disobedience of a statute or ordinance is negligence per se is to be understood as qualified in all cases by the condition that such disobedience must have been the proximate cause of the injury complained of, or at least contributed thereto.”
See also Watson on Damages for Personal Injury, section 256; 21 Am. & Eng. Eney. L. (2d ed.), p. 480; 29 Cyc., p. .439, cl. (g); 20 R. C. L., p. 43, sec. 37.
Plaintiff’s instruction No. 4 told the jury that if they should believe from the preponderance of the evidence that the defendant was guilty of negligence as charged in any of the counts of the declaration, and that such negligence was the proximate cause of the plaintiff’s injury, they should find for the plaintiff; his instruction No. 5 contained a definition of proximate cause as used in the instructions; and his instructions 1 and 2 left to the jury the question whether the violation of the statute was the cause of the injury. His proposed instruction, No. 11, on the other hand, took from the jury the question of proximate cause, and told them that they were obliged to find that the violation of the statute was the proximate cause of the plaintiff’s injury. This was wrong and the instruction was properly refused.
(h) The plaintiff requested and the court refused the following instruction, to-wit:
*557 “The court further says that a servant has a right to presume that the master has performed the duties imposed upon him by law, and does not assume any of the risks arising from the failure of the master to perform said duties, unless he knows of them, and appreciates the. dangers arising therefrom.”
There was no error in refusing this instruction, because while it embodied a correct legal proposition, it had no application to the case as made by the evidence. The only violation of duty on the part of the defendant which the evidence tended to show, and which at the same time could be regarded as the proximate cause of the injury, was a violation of the statute as to warnings and instructions, and there was certainly no occasion for telling the jury that the plaintiff’s decedent had a right to assume that he had been instructed and warned. The court aceorded to the plaintiff his full legal rights in this particular by telling the jury that if the defendant viloated the statute, and violation thereof caused the injury, he had a right to recover. This- latter proposition was in substance stated to the jury more than once in the course of the instructions.
(i) Defendant’s instruction No. 2 was objected to, but given, and the plaintiff excepted. The instruction was as follows: “The court instructs the jury that if the jury believes from the evidence that the place where Joshua Edwards was to work was reasonably safe in the first instance and was after-wards rendered unsafe by the negligent manner in which Joshua Edwards or John Edwards performed their work, and that Joshua Edwards was cognizant of the fact, or should have known the danger, by the exercise of reasonable care, then the negligence was the negligence of the plaintiff or a fellow servant, and plaintiff cannot recover.”
It is said that there was no evidence to justify the hypothesis in the instruction that the place was rendered unsafe in the course of the work, but this contention is plainly wrong. It was the defendant’s theory that the coal which fell was negligently left hanging overhead in an obviously dangerous condition in the'course of the work prosecuted by John Edwards while his brother. Josh was working with him. There was evidence tending to show that this was true, and the instruction, therefore, cannot be said to be without evidence to support it.
(j) The plaintiff also excepted to the giving of defendant’s instructions Nos. 3, 6, 7, 8, 10, 11 and 12. We
4. The last assignment of error arises in this way: The defendant (although generally referred to in ¡this opinion in the singular and as a company) is not a corporation, but a partnership composed of four individuals, one of whom, Dr. T. C. MeNeer, testified as ¡a witness. On his examination in chief he had said that the defendant company was a partnership and that he was one of the partners. On cross-examination hejwas asked this question: “You have stated that .the ¿'defendant is a partnership composed of yourself and ¡others. I will now ask you if there is a recovery in this ease if there is any liability on any one else than the defendant.” The defendant excepted to this question and the court refused to permit an answer. Thereupon the plaintiff avowed that if the witness were permitted to answer he would say that there would be a liability on the insurance company, the United States Fidelity and Guaranty Company of New York, and that said company was present, making and assisting in the defense of the case.
It is said in the brief for the plaintiff that defendant’s counsel had in the opening statement spoken of the hardship it would cause if judgment were rendered against the defendant; that Dr. MeNeer “was on the stand apparently for no other purpose than to win the sympathy of the jury;” and that the question above quoted was asked and the answer thereto sought “to
It is clear, both upon reason and authority, that the court was right in refusing to permit the question to be answered. That the company carried liability insurance was wholly irrelevant, and that the protection thus afforded may have tended to render them less careful than they would otherwise have been was likewise wholly irrelevant, because the question of liability depended upon the fact, of negligence, and not upon the motives or influences which may have brought it about. Va. Car. Chem. Co. v. Knight, 106 Va. 674, 681, 56 S. E. 725.
This case was tried upon correct principles, the determinative questions, which, as hereinbefore pointed out, depended for their decision upon the weight and credibility of the testimony, were fairly submitted to the jury; and the verdict must stand.
Affirmed.