82 W. Va. 32 | W. Va. | 1918
For an injury inflicted February 19, 1910, while in the service of the defendant, the owner and operator of a coal mine in Fayette County, plaintiff who then was sixteen years and ;six months of age brought this action July 30, 1915 .and recovered the judgment reviewed upon numerous assignments of error.
As the amended declaration is complete and does not in any manner adopt or make the averments of the original ; pleading parts of the amended declaration, and as upon it the ' parties apparently undertook to join issue and to try that issue before the jury, it is necessary to look only to the latter ‘•to determine upon demurrer whether plaintiff has stated a cause entitling him to the relief which he seeks. Roderick v. Railroad Co., 7 W. Va. 54. The averments of the latter are : manifold, diversified and repetitious. In some respects they neutralize one another and show plaintiff was guilty of contributing to the injury sued for. Disregarding those that are inapt and inconsistent and tend to negative the right to maintain the action, and omitting the usual description of the corporate character and business of the defendant, the mechani'cal instrumentalities used and the mode of operation, the ‘.pleading avers and the proof relating to each group of aver-ments is, but not in the order stated: that plaintiff,, a poor boy
According to these averments plaintiff has stated a cause of action. For if it be true, as alleged, that he was directed by the superintendent or foreman of its general mining operations, its immediate personal representative, to enter upon the discharge of the duties of a branch or department of the common employment outside of and more dangerous than work he engaged to perform, the master is liable for injuries directly chargeable to the character of the latter work, if plaintiff did not enter upon it voluntarily and did not possess the capacity io appreciate the increased risk, and was not warned of the risk or instructed how to avoid the dangers incident to the new work. “A servant, thus directed to undertake.work outside of that he engaged to do, is not presumed to be aware
The declaration goes further and adds as another important element coercion by the superior managing agents of the defendant’s mining plant and operations. If, as charged, plaintiff was coerced to undertake a dangerous work, one which he did not possess the capacity or experience to'perform with safety, it was hot necessary to aver also that he obeyed without knowledge of the danger, as was held in McClary v. Knight, 73 W. Va. 385. The coercion itself excuses the additional averment. In this manner the charge is brought directly to the knowledge of the defendant and for the purposes of the'challenge for sufficiency by demurrer, the truth of the averment is admitted. The pleading expressly attributed the change in the employment to the mine superintendent for whose acts the defendant is directly chargeable. It must respond to injuries due to his negligence. His acts are its acts. From liability therefor there is no escape if they are done while he is acting for it and within the scope of the service entrusted to him. This requirement is fundamental and needs no citation of authority.
It may be observed in this connection that while the proof introduced to support the action, defendant offering none, shows the change of employment and objection thereto and the injury complained of and inflicted in the manner hereafter described in greater detail, the proof does not trace to defendant'through its superintendent the requirement to go outside Of the original work. There is nothing to show that he had anything to do with moving plaintiff from'mining to hauling coal. Nor did the mine foreman take any part in directing or requiring such change of work. Plaintiff does not say he did nor does any one else. He had no such authority under the statute except under special circumstances
If, however, the new work was more hazardous and plaintiff had not the capacity to discern, appreciate and apprehend the increased peril, upon defendant devolved the duty to warn and instruct him and if defendant failed so to do, it must respond to the injury due to such omission. But it is only when the duty arises that the omission serves as the basis of a recovery. For, under the doctrine of the assumption of risks, a contract to engage in the master’s business is presumed to be made in contemplation of the nature and character of the work to be done, and the presumption continues while the risks and dangers remain the same, or virtually the same; and except as modified by statute the doctrine applies alike -to all employes, except as already noted. Whether a servant is within the classification which imposes upon the master the obligation to warn, usually is a question for the jury to solve. That question the declaration properly presents.
It was not the superintendent of the mining operations or the mine foreman, but Bostick, who requested or directed the change of employment. He had charge only of that department whose duty it was to require the coal to be delivered at the tipple for shipment to market as and when the mining employes in the several apartments of the mine had performed the work assigned to them preparatory to such delivery. This was the extent of the authority conferred upon Bostick and of the duty assigned to him by defendant. Beyond these, he
It is therefore necessary to determine whether Bostick was a vice principal, whose assumption of authority to control employes outside of his immediate department was such as to require defendant to respond for consequential injuries chargeable to that assumption, or a mere fellow servant for whose negligence defendant is not liable. Upon this question the decisions are not harmonious.
One group holds that a servant of superior rank with authority to control, and by whose negligent acts or orders injury to a servant of a lower grade is caused, is as to him a vice principal, not a fellow servant, and his negligence is that of the master. Even under this view, mere authority to employ and discharge men is not of itself sufficient to constitute him a vice principal; power to control the inferior servant, in addition to superiority of rank, is essential. When these two elements are present, the superior is regarded as directly representing the master and his negligence in giving orders and directions is that of the master, not that of a mere fellow servant. 4 Labatt, Master & Servant, §§ 3447 et seq.
A second view is that'to constitute a superior servant a vice principal as regards an employe of a lower grade, it is essential that he possess higher characteristics than mere superiority in rank and authority to control. He must exercise a relatively high quality and wide scope of superintendence, not that form which is exemplified by the gang boss and -is largely mechanical in its nature. Under this view, the latter form of superintendence partakes more of the characteristics of fellow servancy than of vice principalship. 4 Labatt, §§ 1441 et seq.
Still another view, the one adopted and followed in this state, is that the rank of the delinquent employe is not the test of vice principalship, but the character of the negligent act is the determining quality. If the duty violated is one of the non-delegable duties owed by the master to the in
Logically, these observations introduce for determination the further inquiry whether defendant is chargeable with the consequences resulting from the alleged coercion of plaintiff by Bostick. It is well settled that where an employe is transferred by one having authority to a new branch of employment and the employe accepts the change voluntarily with full knowledge of its dangerous character, he is regarded as assuming the risks ordinarily incident to the. changed surroundings and conditions. This rule applies to all adult employes and to minors also, subject to certain qualifications not now important to observe. Labatt, §§ 1203, 1385; Shear. & Red. Neg., §§ 201i, 218. To the main principle stated, however, there is an important qualification, namely, that the servant must voluntarily accept the change in the employment. The doctrine of the assumption of risk rests upon voluntary action. If there is coercion by an agent representing the master and acting in his behalf and upon his authority, express or implied, the law does not regard the servant as assuming the risks.
There is no attempt to show coercion on the part of any
But the more troublesome question is, shall defendant be held responsible therefor, when .the coercion was exercised by sn employe acting beyond the scope of his authority? According to the rule laid down in this state, the test of vice principalship is not the rank of an employe or his authority to employ and discharge, but the character of his negligent act. Is it a non-delegable duty of the master to see to it that no servant ‘in his employ is coerced by any other servant to do work of a different nature from that which he was employed to do? Clearly, where the superior employe has authority to change a servant from one form of employment to another, the duty not to coerce is non-delegable and the delinquent superior servant will be held to be a vice principal. But the master’s non-delegable duty should be limited to those to whom he entrusts authority to change the employment of other servants. It is not proved that Bostick had
Other averments of the amended pleading, admitted by the demurrer to be true, superimpose upon coal haulers not only the duty to haul from the several mine apartments served by the haulers cars loaded with coal mined therein to the several junctions of the main and lateral tracks for haulage therefrom by train loads drawn by high powered electric motors over and along a central mine railroad to the drift mouth and tipple; but also the further duty to go to the drift mouth when enough loaded ears to constitute a train are assembled at the junction, and inform the motorraan of that fact and return with him on the motor or on empty coal cars attached to it to the junctions where they are disconnected and deposited on the sidings for distribution by the haulers. While performing the latter service, plaintiff received the injuries for which he brought this action. It resulted, as he charges, from the negligent operation of the motor by defendant’s agent, who, instead of checking the speed as the train approached the junction to permit the disconnection of the motor and empties and run the latter through the latches onto the sidings, accelerated the speed on a down grade as the motor neared the junction, when plaintiff, fearing a wreck, hurriedly attempted to leap from the car into a manhole or place of refuge, as he supposed, but which, he charges, defendant through the negligence of its incompetent servants and agents had permitted to be filled with ‘ ‘ gob ’ ’, as it also did the space between the railroad tracks and walls of the main haulway at, along and near the siding; whereby and as a result of the negligence and incompetency of the motorman and the negligent omission of other agents and servants of the defendant, plaintiff received the injury and defendant became chargeable therewith.
If the haulway was in the condition averred in the declaration and proved by the ex parte evidence introduced, that condition, though due to negligence, cannot be attributed to
For the most part the evidence introduced upon the trial of the case was directed to the condition of the haulway, upon the theory that the failure to keep it free of obstructions was the proximate cause of the injury. This theory not being tenable for the reasons assigned, defendant’s motion to exclude should have been sustained and it was error not to do so.
It is necessary also to ascertain and determine whether, upon the failure of the plaintiff to reply specially or at all to the plea of the statute of limitations promptly interposed, the trial court should thereupon at once have entered a non prosequitur order. When injured, plaintiff was sixteen years, six months and seven days old, according to his testimony partially corroborated by his father, and was twenty-one years, ten months and twenty-eight days old when he brought this action. No averment of the original or amended declarations attempts definitely to fix any age; the nearest approach is that when injured he “was young and tender in years and incapable of knowing and appreciating the dangers incident
The competency and sufficiency of the proof of the age of plaintiff when injured, he then being a minor, is challenged on the ground of the 'nonproduction of available competent documentary evidence when demanded, -which, if properly and sufficiently identified and authenticated, would set at rest any controversy touching that subject. His mother doubtless knew the exact date of Ms birth, and, though living and residing in the county wherein the trial occurred, she was not called to testify nor was any reason shown or claimed explaining or excusing her absence.
There was, however, other proof of plaintiff’s age when the injurj- occurred and of the date of Ms birth, which, when compared with the date of the writ, showed that the action was brought witMn one year after plaintiff attained Ms majority.
What has been said as regards the nonproduction of available documentary evidence material for the true ascertainment of an important fact at issue between the parties to an action, when demanded or excepted to and assigned as erroneous, applies with equal forcefulness to the failure to introduce a witness who alone besides plaintiff witnessed the infliction of the injury sued for, and who then was present in court in obedience to the command of a summons on plaintiff’s behalf and not called to testify, the presumption in each instance being that the document if produced and the witness if examined would not support the claim of the party upon whom the duty devolved to prove such fact. In other
For these several reasons we reverse the judgment complained of, set aside the verdict and grant a new trial.
Reversed, and remanded for new trial.