75 W. Va. 533 | W. Va. | 1915
Lead Opinion
In an action for personal injuries the judgment complained of set aside the verdict in favor of plaintiff for $11,458.33, and awarded defendant a new trial.
The first point of error is that the court below erroneously sustained defendant’s demurrer to the third count of the declaration. This count is predicated on the duty imposed by section 59, chapter 15IT, Code 1913, on the owner or "master of ‘ ‘ all manufacturing, mechanical and other establishments, in this State, where the machinery, belting, shafting, gearing, drums and elevators, are so arranged and placed as to be dangerous to persons employed therein, while engaged in their ordinary duties” to have the same “safely and
This count of the declaration, while perhaps otherwise sufficient, is bad on several grounds: First, it fails to allege that plaintiff’s duties as an employee to repair and replace belts required him to go up on the particular machine where he is alleged to have sustained his injuries while said machine was in motion; or, second, that it was necessary or possible to safely and securely guard the shaft, pulleys, cogwheels and belts, or metal pin projecting therefrom; or, third, that no notices of the dangers thereof were posted as required by the statute. It is alleged that plaintiff’s duties required him to go up on this machine, but not while in motion, and as is alleged, this was a high machine, and the parts referred to were not so located as to be dangerous to plaintiff or other employees, unless required to go up on it while in motion. "We think the declaration should have alleged the omitted facts in relation thereto to be' good under the statute. The alleged duties of the master in relation to such plant and machinery do not obtain unless the conditions imposing them are present and calling for compliance with the requirements of the statute, and to bring a case within the purview of the statute the declaration should affirm those conditions. Our decisions do hold that the facts being alleged from which the statutory duties arise, the court will take judicial notice of the statute, a breach of those duties being averred. Squilache v. Coal & Coke Co., 64 W. Va. 337, 339, and authorities cited; 3 Bailey on Per. Inj., (2nd ed.) section 843.
The second point is that it was error to sustain defendant’s demurrer to the fourth count of the declaration. This count relates to the alleged negligence of defendant to promulgate rules to govern its employees in operating its machinery, resulting in the injuries sustained by plaintiff. The opinion of the court below was that this count was bad for failure to show how the failure to adopt such rules contributed to or caused the accident, or how the adoption of such rules could have prevented the sudden starting of the machines, and that in the absence of any such showing this count is deficient. Besides averring negligence in failure to adopt and promulgate
Our decisions have adopted the liberal rule on this subject. If the alleged act of negligence be stated in general terms, and without stating the particular facts going to prove negligence, but stating the main or primary act of omission or commission doing the damage, this will be regarded sufficient pleading. Snyder v. Wheeling. Electrical Co., 43 W. Va. 661; Veith v. Hope Salt Co., 51 W. Va. 96, 41 S. E. 187; 10 Ency. Dig. Va. & W. Va. Reports, 397, et seq. These authorities say that “a declaration in an action for negligent injuries which states the cause of action so .that it can be understood by the party who is to answer it, by -the jury who are to ascertain the truth of the allegation and by the court who is to give judgment, and which distinctly sets forth when, where, in what manner and under what circumstances the plaintiff was injured by the defendant’s defaults, negligence and improper conduct is sufficient.” In 6 Thompson on Negligence, section 7536, it is laid down on the authority of the Oregon case of Wild v. Oregon &c. R. Co., 21 Ore. 159, contrary to Voss v. Delaware &c. R. Co., 62 N. J. L. 59, cited, that the general charge of negligence is sufficient to admit evidence in respect to failure to promulgate rules, and that a defendant in support of his plea of contributory negligence may show that he promulgated rules violated by plaintiff, or other servant, resulting in the injury complained of, and this without pleading the specific fact of such rules. In Texas & P. Ry. Co. v. Cumpston, (Tex.) 40 S. W. 546, it is distinctly decided, fourth point of the syllabus, that: “In
But which of these is the correct rule, and whether or not under a general averment of negligence the fact of negligence in failing to adopt and promulgate rules may be given in evidence, or such negligence must be specially pleaded, we need not for the purposes of this case decide, for in our opinion this fourth count sufficiently answers all the requirements of either rule. It avers generally negligence of defendant to adopt and promulgate rules, and distinctly specifies negligence to adopt and promulgate a rule respecting the stopping and starting of defendant’s machines and machinery.
As all the other counts in the declaration seem to be predicated upon the departmental or superior servantey rule, repudiated in our case of Jackson v. Norfolk & W. R. Co., 43 W. Va. 380, and there is no count of general negligence under which the rule of some decisions would admit evidence of negligence in failing to adopt and promulgate rules, we are of opinion to hold that the court erred to the prejudice of the plaintiff in sustaining defendant’s demurrer to said fourth count, and that as another trial is to be had in accordance with the judgment complained of, we think the judgment below should be corrected, and the demurrer to said fourth count overruled, and that on the new trial awarded plaintiff should be permitted to sustain said count by evidence if he can do so.
The only evidence adduced in support of the several counts on which the case was tried, relied on to show negligence, was that, while plaintiff was in the discharge of his duties in removing, repairing and replacing the belt or belts on a particular machine, and where he was required to go while the machinery was not in. motion, the machinery was suddenly and without warning started by the direction or order of the superintendent or foreman on night duty, at the time, whereby he was caught in the cogwheels and other parts of the machinery and sustained the injuries complained of. It is not alleged, and it is not shown in evidence, that plaintiff was not aware of the dangerous place on the machine where he was required to be in the discharge of his duties. He does not allege or rely on failure to instruct or warn him of the dangers of his position, as were the facts in Cave v. Blair Limestone Co., 74 W. Va. 752, 82 S. E. 1095, distinguished therein from Miller v. Limestone Co. and Ferguson v. Glady Fork Lumber Co., supra. As was said in Jackson v. Norfolk & W. R. Co., supra, and subsequent eases, the question of the liability of a master for the negligence of a servant does not depend upon the relative rank in which one servant stands in relation to an injured servant, but upon the character of the negligent act which causes the injury. If that negligence pertains to some non-assignable duty of the master entrusted to one of his servants, whatever be his rank, the master is
And for the foregoing reasons we are further of opinion that as the record then stood there was no error in the judgment below vacating the verdict and awarding defendant a new trial; nor in the refusal of the court to enter judgment upon the verdict for plaintiff.
But the court having erred in sustaining defendant’s demurrer to the fourth count, when the case goes back the court below will enter an order overruling the demurrer to said fourth count, so that the plaintiff.may have leave to be hoard on that count also on proper pleadings and issues joined thereon.
Affirmed.
Dissenting Opinion
(dissenting in.part):
Let it be distinctly noted that the order appealed from is one setting aside a verdict. The effect of the writ of error is that the plaintiff comes here and says that he obtained a verdict and that the court committed error in setting it aside and awarding a new trial. In other words, he says that he had a verdict free from error, but that the court subsequently erred in setting it aside. So the only error brought up is the alleged error of the trial court in setting aside the verdict. Logically, the writ of error can not present a question other than whether the court did err in setting aside the verdict. It can not present questions as to whether the court had erred to the prejudice of the plaintiff previous to the order complained of; for his appeal says that he is entitled to judgment on the verdict regardless of such error.
Now, on such an appeal the plaintiff complains that error was committed in sustaining a demurrer to certain counts of the declaration. But by his appeal he insists that the verdict was sound notwithstanding any such error. The force of his
Of course it will be said that the ruling out of a certain count made the verdict to stand on narrower ground and was prejudicial to the plaintiff. But the gist of his appeal is that though a prejudicial ruling was made against him, the verdict is one on which he is entitled to judgment nevertheless. The plaintiff so comes that he brushes aside any prejudicial ruling against him and banks his case on the validity of the verdict regardless of any such ruling.
"We find that the verdict was properly set aside because it involved errors against the defendant, and that there must be another trial. But at this stage of the case, for all we know, the plaintiff will again prevail regardless of the ruling on the demurrer and get a verdict and judgment which the defendant can not overthrow. For all we know, the ruling on the demurrer may never prejudicially enter into any finding or judgment. It has certainly not yet so entered into any appealable order or judgment. Until it does, how can it properly be reviewed on appeal? As the ruling on the demurrer stands in this record, it is a mere interlocutory
Perhaps it would be good policy if there were some law of appellate procedure reaching such instances, but to my mind there is none. If we are .consistently to keep within the range of ordinary rules as to complaints of error, we have nothing to do in this case with error committed to the prejudice of the plaintiff, which according to his own theory, as manifested by the particular appeal that he brings, has not yet affected him.
The majority permit the plaintiff, though the trial court did not err in the judgment complained of, to have a review of the ruling on the demurrer, wholly outside of that on •which the appeal rests — an order expressly made appealable by statute. It is the same as to say that when a verdict is rightly set aside by the trial court, though the order is so clearly right that the party against whom it is can not maintain an appeal on it, still he may have all former steps in the case reviewed. This is virtually saying that one may have review on appeal, simply because his verdict has been set aside, of all that has gone before, whether it has yet prejudiced him or not, in preparation for the new trial. Such is not within the contemplation of the statute allowing a writ of error from an order granting a new trial. The scope of appellate jurisdiction under that statute has thus been defined : ‘ ‘ This court being called upon to review the action of a trial court in setting aside a verdict and awarding a new trial, it will inquire from the record what errors, if any, sufficient to justify such action, were committed at the trial to the prejudice of the party against whom such verdict was rendered, and whether such verdict is plainly contrary to law and the evidence.” Robinson et al. v. Kisiler, 62 W. Va. 489. Our jurisdiction goes no further.