64 W. Va. 288 | W. Va. | 1908
Rufus Toler an employee of the Elk Ridge Coal and Coke Company, was fatally injured at its tipple at the foot of
Plaintiff’s decedent was engaged in dumping the loaded cars at the tipple, to which they were lowered from the drum house at the mouth of the mine on an incline, connecting the two points, by force of gravity, loaded cars, descending, drawing empty ones up, by means of a wire cable, passing over a drum at the tipple, and the speed being regulated by a lever in the hands of an operator. The cable was not attached to the cars, but to blocks against which the cars rested, called “Barneys,” each track being double, having one set of rails for the “Barneys” and one for the cars. When a loaded car, coming from the mine, .went on the proper track at the tipple, at the right time, there was a “ Barney” in position to receive it, so that it could not get beyond control, if the drum was attended to. While that track was always closed or protected by the “Barney,” the other one was open, its “Barney” being at the tipple, and a car, going on it, would run wild down .the incline, but for a mechanism, called a “Dead Block,” placed just below the intersection of the two tracks, coming up the hill, or the branching or fork of the single track, coming from the mine. By reason of negligence or oversight, cars did occasionally thus take the wrong track and were stopped by the “ Dead Block.” It was the business of the “ Drum Runner” to operate the drum lever and also the switch lever, near it, by which the cars were guided on to the proper track. For some reason, whether habitual or anticipated negligence of the drum runner, or defectiveness of the switch, or extraordinary precaution against accident, the “ Dead Block” was provided. A proved fact, is that some cars, gone wrong, had been stopped by it. This block was made of two boards, eight inches wide, three inches thick and three feet long, laid one on top of the other, and nailed or bolted together and placed between the tracks, on a three inch block. About the middle of it a bolt, an inch and a quarter, in diameter and 18 inches long, went through it, the block on which it rested and a three inch
The court overnded a demurrer to the declaration and each of. its four counts, and this is assigned as error. All of the counts set forth'minutely the plan, arrangement and equipment of the. plant, and aver the duty of the defendant “to use all due and proper care for the safety” of the decedent, and “to so pi’ovide, in operating its said line of railroad” that he “ could, with safety and without unnecessary risk and danger to himself perform his duties,” and then charge that the defendant “ did not regard its duties as aforesaid and did not use due and proper care, foresight, prudence and caution.” The first avers the further duty “by due and pi'oper care, foresight, prudence and caution to provide a proper, suitable and safe place for said Rufus Toler to work” and charges that it did not do so, but “carelessly and negligently permitted and suffered the dead block * * * to be and l’emain, without the knowledge of the' said Rufus Toler, out of order and repair and not properly fastened so that it was wholly insufficient and useless for-.. the purpose for which it was intended; and by reason thereof’* &c. The second avers the duty to provide a capable and competent person, as switchman, and charges failure and negligence in that respect, specifying the employment of an incompetent person. The third is similar to the second, charging the employment of a number of incompe-' tent servants. The fourth is almost identical with the first. Both of these further charged knowledge of the defective;
All the counts are clearly sufficient. It is argued that the first does not charge injury resulting from the defective dead block, because it avers there was no barney in position at the time to receive the car, and fails to show who placed, or permitted the car to go, on the track. Notwithstanding all this, it charges a defective block and its failure to stop the car as it should have done and was intended to do. Another criticism is supposed lack of an averment of failure to use due, reasonable and ordinary care. It does aver failure to use care, but may not state the exact degree of care required, though it says the defendant did not use due care nor exercise f i.-csight, prudence and caution. We deem this amply sufficient, since the object of the declaration is to inform the defendant with reasonable certainty of the nature of the demand and ground of the action. If the terms used be construed to mean that no care at all, or slight care, was used, the averment is obviously sufficient. They cannot mean a high, or the highest conceivable, degree of care, for they do not import that.
At the tria], a blue print was admitted in evidence, by agreement of the parties, showing the construction and mode of operation of a new and better dead block put in after the accident; for the purposes of illustration, concerning which questions were propounded and answered. It was a better block and on the bolt below the floor there was a nut to prevent it from bouncing or being pushed up. Over the objection of the defendant, a witness was required to state when the new block was put in and point out the differences between it and the old one, and the change was thus shown to have been made about a week after the accident. On a subsequent motion to strikeout this evidence, the court “sustained the motion of the defendant to strike out so much of the evidence of the witness as relates to the condition of the dead block at the present time, but overruled
Toler was found on the ground about ninety feet below the point at which he had worked in the tipple building, and no witness testifies as to where he was when struck. The presumption in favor of performance of duty and right action, aided by the circumstances, affords ample foundation for the inference that he was at his post of duty.
The dead block was not safe in point of fact, as one of the workmen discovered and informed the mine foreman a short time before the death of Toler. It was not only insecurely attached to the floor but failed to turn fully across the track as it should have done. Between that time and the happening of the injury some change was made, the nature and extent of which is not shown, but it was not remedied in these respects. That the servants in allowing the cars to go against it, saw the necessity of running or allowing them to go to it very slowly and carefully, tended to prove its unsafeness. There is no proof of long and safe use of this dead block or one similarly constructed and attached, so as to bring the case within the rule stated in Schwartz v. Shall, 45 W. Va. 405, Riverside &c. Mills v. Green, 98 Va. 58, N. & W. Ry. Co. v. Phillips, 100 Va. 362, and other authorities cited in the brief. Just at this point, it is suggested that the master is not bound to provide absolute safety, nor the best and safest machinery and appliances. No, but he must exercise reasonable care and we think the state of the evidence such as to raise an inquiry in this connection proper for jury determination.
The third and fourth grounds of the motion to exclude may be disposed of together. The dead block formed a part of the plant. It was designed and intended to perform a function in the operation of the mine and constituted a safe-guard for both life and property. It may have been provided to compensate for inefficiency of the track or
The criticism of the instructions given for the plaintiff is, in substance, that they told the jury it was the duty of the defendant to furnish Toler a safe place in which to work and safe appliances, and precluded inquiry as to whether the negligence of a fellow servant was the proximate cause of the injury. Though “safe place” and “safety” are, in some instances used, the measure or degree of care required
The court refused to instruct that the knowledge of the mine boss, respecting the conditions of the dead block, was not equivalent to notice to the company. As to the duty of provision and maintenance of a safe place to work, not operation of the works, the mine boss was a vice-principal', charged with the duty of inspection and report. Though he may have no authority to make changes or repairs, he did have supervision and general oversight of the work and premises, and notice to him was, in law, notice to the master. 26 Oyc 1141, citing numerous cases from many of the states. The instruction was, therefore, properly refused.
For the error noted, respecting the admission of evidence, the judgment will be reversed, the verdict, set aside, and the case remanded for a new trial.
Reversed. Remanded.
I cannot agree to reverse, and for the reason that I think the evidence for which the reversal is made did not produce or conduce to the verdict, and that the verdict should and would have been the same without it. If that bolt in the block was defective, and caused the accident (Who can dispute this?) is it possible that evidence that the company caused a better one to be made later could have caused the jury any more to think that the bolt was bad on the day of the misfortune, or changed the jury’s opinion as to its conditions on that day? I think there are too many revérsale on light and technical grounds. Where improper evidence has been ad-
I hesitate as to the liability; but treating the ground of liability, that is whether the block 'was such a defect as entailed liability, as a question of fact for the jury, conceding that, I would not set aside the verdict for the admission of improper evidence.