72 W. Va. 307 | W. Va. | 1913
The declaration in this action .for damages for a personal injury to a street car conductor, occasioned by derailment of the car on which he was working, contains seven counts, the sufficiency of each of which is challenged by demurrer. The trial court sustained the demurrer as to the third count and overruled it as to all the others. On this writ of error, the defendant complains of the rulings on the demurrer adverse to it and the overruling of its objection to certain instructions and its motion to set aside the verdict.
Improper construction of the curve at which the derailment took place, set forth with considerable detail and’ specification, and operation of the ears thereon, constitute the gravamen of the first and second counts. In connection with this allegation of an unsafe place of work for the plaintiff, the operation of the car over the track so improperly constructed is admitted. On this admission is founded an argument or contention of assumption of risk on the part of the plaintiff, constituting a defense apparent on the face of the counts themselves. A defect in construction of that sort, discoverable only by measurements and the application of scientific rules and principles, is not an obvious one of ■which an employee must take notice. No palpably improper construction is admitted. The'se counts say only that the defendant carelessly and negligently constructed the said curve, carelessly and negligently used in the said construction improper and unsafe rails, improper and unsafe guard rails, and carelessly and negligently constructed an irregular, untrue, improper and unsafe curve. All this may be true and the defect or danger be not open and notorious, so as to attract the attention of the conductor passing over the road in the course of his employment.
Defective equipment of the car in respect to brakes and sand appliances is the ground of negligence asserted in the fourth, sixth and seventh counts, and failure in respect to the duty of inspection of the track is the charge of the fifth. As the fourth merely alleges defectiveness of the brake, without showing the ab
Most of the counts aver duty on the part of the defendant to maintain a safe place for work by the plaintiff and safe instru-mentalities and appliances with which to work, not mere duty to exercise reasonable care to provide a reasonably safe place to
Failure to define, in the instructions given for the plaintiff, the measure of the defendant’s duty in accordance with the conclusions stated in Worley v. Lumber Co., a ground- of complaint. There is a like omission in the instructions given at the instance of the defendant and those' asked for by the - defendant and refused. The failure of the attorneys for each of the parties to ask any instruction on this subject seems to have been either the result of oversight or conviction on their part that the measure of duty was so well understood by the jury that there was no • occasion for instructions on that subject. This omission may render some of the instructions incomplete, but the deféct is rather a formal one and seems to have been waived.
As the plaintiff did not testify and there is no- evidence as to what particular vocations or callings he had capacity for before the accident,'exception is taken to that part of instruction No. 2, given for the plaintiff, which authorizes the jury, in estimating damages, to ascertain how far the injury is calculated to disable him from engaging in those pursuits and occupations, for which, in the absence of such injury, he would have been qualified. This objection is untenable. In the absence of evidence as to his capacity and fitness for particular vocations, the jury could base an estimate upon their common knowledge of the capacity of an ordinary man to follow a great many pursuits.
The car on which the plaintiff was working at the time of his injury had formerly been equipped with four sand boxes, two -oh
Another ground of complaint is the refusal of the court to give defendant’s instruction No. 6, dealing with the removal of the sand boxes. Its general purpose was to submit to the jury the propriety, under all the circumstances, of the removal of the boxes, but the terms in which this portion of it is expressed are inartificial, inapt and misleading. It would have directed the jury to inquire whether it was “the proper thing” to remove the double sand boxes on the summer cars and whether these changes were made according to the judgment, and under the instructions, of the defendant’s superintendent. Had this instruction been given, it would have submitted no inquiry as to whether the car was rendered defective or unsuitable for use after the removal of the double said boxes. It would have required a finding as to whether the removal of the double sand boxes was “the proper thing”; a very indefinite inquiry. We do not think the court erred in refusing this instruction.
The derailment and injury complained of occurred on a very steep grade, ranging from 4.65 feet in a distance of 100 feet to 11.74 feet, and at a sharp curve at which the grade was nearly 7 feet in .the 100. The average grade was 8.76 feet in every 100 feet. The road ran from the city of Wheeling up a steep hill to a place of amusement, called Mozart Park. Between the sharp curve, at which the derailment took place, and the park there is at least one other curve on a heavy grade. Over this road in the summer, there is very considerable traffic. On certain occasions, as many as 29 trips a day were made over it by the single truck ■open summer cars. When these cars were first put on, they had two sand boxes on each end, operated by the motorman, so as to sand both rails at the same time. They remained in this condition from 1903 or 1904 until 1907, when the boxes were changed. Two of them were removed and placed on the winter cars, leaving one box on each end of the summer cars. This rendered it impossible for the motorman to sand more than one rail at a time. Before the occurrence of the accident here involved there had been two similar accidents at the same place, one by ear No. 35 while •equipped with four sand boxes, and another by a similar car carrying only one sand box on each end. All the cars were equipped with hand brakes and magnetic brakes and also with an appliance
In the relation between master and servant, the principle of waiver has wide scope and operation. In the abstract, the master is under absolute duty to furnish the servant a reasonably safe place in which to work and reasonably safe appliances with which to work, but the servant, having knowledge of the failure in these respects, is deemed to have waived performance or rather to have assented to,the conditions the master has made. The principle is stated in Fulton v. Crosby-Beckley Co., 57 W. Va. 91, 94, as follows: “As the employe assumes the risk of all known dangers, thoug-h attributable to failure of legal duty in the abstract on the part of the employer, the question of negligence in any given case depends upon the relation which the master and servant, by their conduct and agreement, have established between themselves with reference to the business in which the servant is employed. This waiver on the part of the servant releases the master from much of the burden which the law, but for it, would impose.” This conclusion resulted from an examination of many cases. Its application here necessarily results in reversal of the judgment and the granting of a new trial. The conditions under which the plaintiff was working at the time of the accident were those under which he had been working for several months at least. He knew the character of the road, its subjection to foggy and murky weather, rendering the track slippery, and the liability of cars on such a road under such conditions to get beyond control, even when operated by the most competent motorman. This danger was not so great as might be supposed, for, during, the whole period of two years in which cars equipped as the one on which he was working had been used on the road, but a single accident had occurred. Within that time from 19 to &9 trips a day had been made over the road, during the summer season, amounting in the aggregate to thousands, and the cause
As the evidence is wholly insufficient to sustain the verdict, the judgment must be reversed, a new trial granted and the case remanded.
Reversed and Remanded.