79 W. Va. 601 | W. Va. | 1917
On a former hearing we affirmed the judgment vacating the verdict of the jury and remanded the case for a new trial, but holding that the court below had committed error to the prejudice of the plaintiff in sustaining defendant’s demurrer to his fourth count, predicated on the alleged negligence of the defendant to promulgate and enforce proper rules for the government of its employees in the operating of its plant and machinery resulting in the injuries sustained by plaintiff ; and we also gave leave to plaintiff to amend his declaration if so advised. 75 W. Va. 533.
When the case was again docketed in the circuit court plaintiff filed an amended declaration in two counts, the first covering the subject of his third count, held bad on demurrer on the former hearing, and supplying the omissions and curing the defects therein pointed out in the opinion of the court. That count related to the alleged negligence of defendant in not complying with section 59, chapter 15H, Code 1913, requiring the machinery, etc., to be safely and securely guarded when possible. The second count is substantially
We have not been favored by counsel for plaintiff in error with any brief or oral argument in support of the many points of error assigned in his petition. We have examined, the two counts of the amended declaration, however, with reference to the points made on the demurrer thereto, and find no substantial merit in them. These objections were fully answered upon the former hearing, and we think it unnecessary to again make response thereto. These amended counts have cured every substantial defect in the original counts.
We have also carefully examined all the other points of error assigned in the petition relating to the defendant’s motion to strike out the evidence as to each count of the declaration, the giving of plaintiff’s instructions to the jury, defendant’s interrogatory propounded and those not submitted to the jury, motion for a new trial overruled, etc., and so far as we can see every point is fully met and decided adversely to the contentions of defendant’s counsel by the opinion of the court delivered on the former hearing, and by the cases of McClary v. Knight, 73 W. Va. 385, and Robinson v. City & Elm Grove R. R. Co., 71 W. Va. 423.
Our opinion, therefore, is to affirm the judgment.
Affirmed.