61 W. Va. 531 | W. Va. | 1907
John McMillan, an employee in the coal mine of Middle State Coal & Coke Company, received a great personal injury from explosion of dynamite caps used in shooting down coal in that mine, and in an action against the company he recovered a verdict and judgment for $4,000, and the company brought the case to this Court.
The defendant moved tlie court to strike out the plaintiff’s evidence and direct a verdict for defendant, but the court, refused to do so. The defendant gave no evidence at all. The only evidence for the plaintiff was given by himself. This motion to strike out seems to involve all that need be discussed. The plaintiff states that he was employed to load coal in cars in the mine, and that he was working with an Italian who used dynamite in shooting down the coal, and that he, the plaintiff, had nothing to do with shooting down the coal, or in using the dynamite, and that he had no experience in the use of dynamite, and knew nothing of its dangerous properties. The mine boss directed the plaintiff to go to a box and get some dynamite caps and take them to the Italian, and under such direction he went to the box and searched for the caps in it. He took up some of the caps,in his hand and was taking them out of the box and from some cause or other they exploded and hurt him. The plaintiff claims that he knew nothing of the dangerous property of dynamite, and that therefore the company should have warned him of the danger, and should have given him instructions how to handle
Furthermore, the authorities above cited hold tlie mine boss a fellow servant with McMillan, and' say that the company is not liable for his negligence or omission. What is it that is claimed to have caused the injury to McMillan? The act of the mine boss in ordering him to different work and particularly in failing to instruct him of the danger of dynamite — in other words, the negligence of the mine boss. How can you make the company liable for the negligence of a fellow servant? If servant as to statutoi’y duties, the court regards the mine boss a fellow servant. This act was not a statutory duty, and his authority as to it is not shown, and even then, he would be a fellow servant. From these views we must say that the circuit court should have struck out the evidence of the plaintiff and directed a verdict for the defendant, and therefore we reverse the judgment and render judgment for the defendant. Anderson v. Tug R. Co., 53 S. E. 713.
Reversed.
In a petition for rehearing it is stated that the person called boss was not a mine boss. We do.not know from the record. Say that he was not. What his exact position or authority? It is not disclosed. He was an employee, and a fellow servant, for whose act or negligence the defendant cannot be bound. Jackson v. Railroad Co., 43 W. Va. 380; New Eng. Co. v. Conroy, 175 U. S. 323.