71 W. Va. 220 | W. Va. | 1912
The gravamen of the action for damages for personal injury to the plaintiff, while in the service of the defendant, as a coal miner, is the lack of statutory refuge holes along the motor haul-way of the mine on which the plaintiff was injured, or provision for the safety of the employes on said way by means of sufficient space for a walk way between the track and the rib of the mine, or otherwise, in lieu of refuge or man holes.
While the plaintiff was going along this way from his room to
The ground of defense was contributory negligence in permitting his lamp to be out, failing to run back to an opening about 33 feet distant, since the motor was running at a low rate of speed, neglecting to go out by a different way, provided for the purpose, the suitableness of which is denied,- and failing to familiarize himself with the state mining laws, a copy of which he had.
The judgment in his favor will have to be reversed, under principles declared in Helliel v. Piney Coal Co., 70 W. Va. 45, 73 S. E. 289, holding the statute makes it the duty of the mine boss,, not the operator, to provide refuge holes or, in lieu thereof, a pass way. The evidence shows the defendant had a mine foreman and his competency is not questioned.
The judgment was rendered upon a demurrer to the evidence. On reversing it, therefore, we will render judgment here for the-defendant.
Reversed.