104 Va. 615 | Va. | 1905
delivered the opinion of the court.
This is a personal injury case in which judgment was rendered on behalf of the defendant in error (the plaintiff in the trial court) upon a demurrer to the evidence. It is a companion case to that of Lane Bros. & Co. v. Bauserman, 103 Va. 146, 48 S. E. 857; and as both cases had their origin in a common accident, reference may be had to the opinion in the latter for a concise statement of the facts in the former case.
The Bauserman case was submitted to a jury, and from an adverse verdict and judgment Lane Bros. & Co. obtained a writ of error to this court. The case was affirmed in all respects, except that the refusal of the lower court to permit certain questions to he answered was held to be reversible error. Hence, it may be remarked, that most of the assignments of error relied on here have been resolved adversely to the pretensions of the plaintiffs in error in the Bauserman case.
The open questions in this case involved, for the most part the action of the trial court with respect to the admission of certain alleged illegal testimony.
The general rule on the subject is that the improper admission of evidence, which may have been prejudicial, constitutes reversible error; and this is true even though it be doubtful
But the general rule is subject to the exception, that “if in such case there is a demurrer to the evidence, and an alternative verdict, and, after disregarding upon such demurrer such illegal evidence, and treating the balance of the evidence as is proper under the rules applicable to demurrers to evidence, there is plainly enough evidence to sustain a judgment for the de-murree, the admission of the illegal evidence will not reverse, otherwise it will.” Taylor v. B. & O. R. Co. (W. Va.), 10 S. E. 29.
Erom the standpoint of a demurrer to the evidence, applying the foregoing exception to the case in hand, the admissible, relevant evidence is ample to sustain the judgment under review. In that aspect, the case presented is briefly as follows: The defendant in error, who was a laborer in the rock quarry of the plaintiffs in error, was absent from the quarry when the hole in q\iestion wras loaded, and on his return several days after-wards was ordered by the acting superintendent to drill out the hole, when, in response to the direct inquiry, he was informed that it was not loaded. In obedience to orders, and relying upon the assurance of the vice-principal, he and his unfortunate companions, operating a heavy, twelve-foot steel churn-drill, drove down upon a charge of powder, capped with an electric exploder; whereupon the explosion which resulted inflicted the injuries complained of.
The plaintiffs in error seek to escape liability on the ground that the defendant in error was guilty of contributory negligence. The evidence on that point was conflicting. The burden of establishing it rested upon the plaintiffs in error, who saw fit, by demurrer to the evidence, to withdraw that question from the consideration of the jury. The rule in such case is, that if the jury might have found the demurree not guilty
Under these circumstances it is obvious that, upon a demurrer to the evidence, no other judgment could have been properly rendered in the case.
The remaining assignment of error, that the damages assessed by the jury ($1,205) are excessive and unreasonable, is without merit. There is no pretense that the jury were actuated by prejudice or partiality in arriving at their verdict, and the serious character of the injuries sustained by the defendant in error fully justified 'their finding. His left hand was broken and otherwise injured; his face cut and burned with powder; and a section of his teeth “knocked loose.” Besides, it appears that his wage-earning capacity has been reduced from $1.25 to $1.00 per day.
Upon the whole case, the judgment is plainly right, and must he affirmed.
Affirmed.
