93 W. Va. 81 | W. Va. | 1923
Plaintiff in error, Rufus Estep, prosecutes this writ of error to tbe ruling of tbe circuit court in bis action for damages for personal injuries received while in tbe employ of defendant C. E. Price. At tbe conclusion of tbe evidence tbe court struck out all of plaitniff’s evidence and directed a verdict for defendant, wbicb was accordingly returned, upon wbicb judgment of nil capiat was entered May 2nd, 1921.
Tbe declaration contains two counts and sets out two causes of action. The first is that defendant failed to provide reasonably safe tools and appliances with wbicb plaintiff and bis fellow servants did defendant’s work; and the second is that defendant was not reasonably careful in selecting and hiring competent and careful servants with whom plaintiff was required to work. Both counts averred that defendant, though an employer within tbe scope of tbe workmen’s compensation law of tbe state, was not a subscriber to that fund and was not entitled to tbe protection afforded by that act, and could not avail himself of the common law defenses; namely, tbe fellow servant rule; assumption of risk; and contributory negligence.
Defendant was engaged in grading and constructing a county road, and employed defendant, with a number of other workmen, for that purpose. On tbe day of tbe injury plaintiff was engaged in constructing temporary houses for tbe workmen, and was directed by defendant to go a short distance and assist in felling a large elm tree wbicb stood in tbe right of way, then being' cleared. Accompanied by a fellow workman, Zarnes, be went to tbe tree where be says be found two other employees, Burks and Swann, engaged in sawing into tbe upper side of tbe tree with a cross cut saw. Plaintiff engaged in sawing with tbe cross cut saw, and Burks began to chop into tbe tree on tbe lower side, when tbe axe be was using slipped off tbe handle and struck plaintiff on tbe back of the band severing some óf tbe tendons, causing serious and possibly permanent injuries. This axe and its unsafe condition furnishes tbe central theme of controversy. It appears that defendant did not furnish tbe axe' and did
There is some conflict in the evidence as to whether plaintiff and Zarnes took the defective axe to the tree with them, or whether it was already there when they arrived. Burks and Swann say that plaintiff and Zarnes were at the tree and were sawing when they arrived. As before stated, plaintiff and Zarnes say that Burks and Swann were doing the sawing when they arrived. There is much controversy over how the accident occurred. Some of the witnesses say that the sawing had ceased, the saw having become bound in the tree, and that plaintiff was reclining near the foot of the tree when the chopping was in- progress and had been warned by Burks, the chopper, to get out of danger. Evidently the court struck out plaintiff’s evidence on the theory that defendant had not furnished the double bitted axe, but that some of his employees had procured it without his instructions, and he was not responsible for its presence or defects.
Was the evidence sufficient to make out a case for the jury? This is the sole question for decision. The rules is fairly well stated as follows: "If in any possible view of the evidence, a verdict would be sustained in favor of plaintiff, the court may not instruct in favor of defendant, although the seeming preponderance of the evidence is with him.” White
To make a master liable for an injury to his servant by omission of some duty imposed upon him, the existence of a casual relation between such omission and the injury is neces-' sary. “An employer who has not elected to bring himself within the provisions of the Michigan Workmen’s Compensation Act, is not answerable for injury sustained by an employee, in the absence of some negligence on the part of the
Then, what duty -unperformed 'by Price had a casual relation to Estep’s injury? Counsel for Price, while admitting that the law requires a master to furnish reasonably safe tools and appliances, insist that he did not furnish the defective ase, and had no opportunity for selecting or inspecting it, and was not liable for the accident. As before indicated, in considering the case, we must discard from consideration all of defendant’s evidence in conflict with plaintiff’s evidence. Plaintiff and Zarnes found Burks and Swann at the tree which they had partially sawed on the upper side, and partially cut on the lower side. The tools were there, and being used by them. The tree was a large elm, three or four feet across the stump. The presumption would be that defendant had furnished the tools. Plaintiff was injured in the discharge of his duty in the master’s business, and without any fault on his part in the manner detailed. Defendant knew nothing of the double bladed axe, how it got there or whence or by what agency it came; but the jury could reasonably infer that it was brought there by some one undisclosed who had authority to do so. Who was in immediate charge of the force of hands engaged in clearing the grade is not disclosed. Some preparation was made by 'some one for the cutting and removal of this large tree, and presumably by one in authority. The jury could also reasonably conclude that the small poleaxe which had been used on the steam shovel was not a sufficient tool with which to notch this large tree; that there was negligence in not supplying necessary and sufficient tools. The question of negligence on the part of the fellow servant Burks in using a defective tool, if he knew it was defective or should have known, was a jury question. The tree had a large notch cut into it on the lower side when plaintiff and Zarnes came to it. Whether it had been .cut by Burks with the defective tool before their arrival or by some one else, and opportunity afforded to detect its looseness on the handle was a question which would address itself peculiarly to a jury. Burks and Swapn, it
Assuming that plaintiff’s evidence truly describes the accident and its cause, and assuming it to be true that defendant had no knowledge of the presence or use of the defective axe, the jury, under the circumstances surrounding the unfortunate incident, might reasonably infer and find that the master had neglected to furnish sufficient and reasonably safe and suitable tools for the purpose of cutting and removing the tree, and that a fellow servant was negligent in the performance of the master’s work.
We are considering the case from the standpoint of plaintiff’s evidence, discarding defendant’s evidence in conflict therewith. Of course, it would be impossible to determine what would have been the verdict when all of the evidence was considered under proper instructions. But had a verdict been rendered under proper instructions, we do not perceive on what legal principle it could be set aside. The question of negligence on the part of the master, and on the part of the fellow servant, under all the facts and circumstances, was, for the jury to determine.
The judgment will be reversed, the verdict set aside and; the case remanded for a new trial.
Reversed and remanded..