120 Va. 150 | Va. | 1916
delivered the opinion of the court.
The plaintiff, T. G. Donald, brought this action to recover of the defendant lumber company damages for personal injuries alleged to have been suffered in consequence of its negligence.
Viewed, as this case must be in this court, from the standpoint of a demurrer to the evidence, it appears that the Millboro Lumber Company, Inc., was, when plaintiff was employed, building a large band saw-mill, with all necessary modern equipments and appurtenances; that ft. E. McCamey, a mill builder of large experience in the construction of such plants, was in charge of the work, employing the necessary labor and generally superintending and directing such labor in their work. On the 1st day of May, 1914, McCamey employed the plaintiff, Donald, a young man about twenty-five years of age, v/ho had lived all of his life on a farm and was wholly without experience in the work upon which he was then entering. At the time of the injuries complained of, McCamey was engaged in the construction of a slab conveyor, which ran from the sawmill to the furnace, a distance of 150 to 200 yards. This slab conveyor increased in height from the mill to the furnace, where it was thirty-five feet from the ground, and consisted of a succession of trestle frames or bents about eleven feet apart, with planks nailed on top. These bents were made on the ground and raised to the desired position by a block and tackle, and steadied by a guy rope which was fastened to a snubbing post on the ground.
It is clear from the evidence that the accident happened in consequence of defective fastening of the ropes, and it is also quite clear that it was the inadequate fastening of the controlling rope on the ground, which was under Mc-Camey’s immediate supervision and direction, which slackened and caused the rope above to come unhooked. The rope above could not have come unhooked unless the controlling rope on the ground was loosened or slackened. The details as to how the ropes came loose are, however, immaterial. It was the duty of the master to furnish the plaintiff with reasonably safe appliances with which to perform the duty he was ordered to perform. It was the alleged neglect of this duty that caused the injuries sustained by the plaintiff.
Upon the trial of this case there was a direct conflict of evidence upon most of the material points. This conflict was determined by the verdict of the jury for $2,500 in favor of the plaintiff, upon which the judgment was entered that we are now asked to review.
We are of opinion that the demurrer to the declaration was properly overruled. It shows the relation between the plaintiff and the defendant, the legal duty owing from the one to the other, the breach of that duty by the defendant and the damage resulting to the plaintiff from such breach.
The defendant company assigns as error the action -of the court in refusing to give the ninth instruction asked for by it, which tells the jury, “that if they believe from the evidence that the plaintiff and R. E. McCamey were both in the service of the Millboro Lumber Company, working under the same control, deriving authority and compensation from the same source, and engaged in the same general business, although in different grades or departments, that then the said R. E. McCamey and the plaintiff are fellow servants and take the risk of each other’s negligence, and if the plaintiff was injured by the negligence or carelessness of R. E. McCamey, then the plaintiff cannot recover and the jury should find a verdict in favor of the defendant.”
There is no conflict in the evidence upon the question involved in this instruction. The defendant did not introduce a word of evidence tending to show that the plaintiff was a fellow servant of R. E. McCamey. On the contrary, the trial proceeded upon the theory that R. E. McCamey was in full charge of the work, performing the nonassignable duties of the master. All the evidence in the case bearing on the subject shows that McCamey was the agent and representative of the company, and that his act of negligence in failing to supply and maintain suitable instrumentalities for the work required of the plaintiff by him, was a breach of duty for which the master was liable.
The defendant’s third instruction, which was given, is as follows: “The court further instructs the jury that the plaintiff, T. G. Donald, must prove by a preponderance of the evidence that R. E. McCamey, who was in charge of the work of constructing the slab conveyor, directed or ordered the plaintiff to cross from one of the trestles or bents to the other on the tackle rope, and that unless the
Instruction No. 9, which was refused, was in conflict with instruction No. 3, given at the request of the defendant, and under the facts shown of record the defendant could not have been prejudiced by its refusal.
Objection is taken by the defendant company to the action of the court in giving, over its protest, instruction No. 2 asked for by the plaintiff, which is as follows: “The court instructs the jury that if they believe from the evidence that the plaintiff was a servant of the defendant company and that he was ordered by a representative of the company in authority over him to go from where he was on a ‘bent’ or trestle section to another ‘bent’ or trestle section on the three block and tackle ropes connecting said ‘bents’ or trestle sections, then it was the duty of the plaintiff to obey such order unless the act was one obviously attended by such danger that a man of common prudence would not have undertaken it.”
There is no error in this instruction. It is based on the evidence and sustained by abundant authority. It is a necessary and primary element in every contract of service that the servant will obey the commands of his master. The promise of the servant to obey the lawful and reasonable orders of his master, within the scope of his contract, is implied by law, and he must obey unless the act be one obviously attended by such danger that a man of common prudence would not undertake it. 1 Labatt M. & S. (2nd
“The servant does not stand on the same footing with the master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged through the negligence of the master, it is but meet that he should be recompensed.” Patterson v. Pittsburg &c. R. Co. 76 Pa. 389,18 Am. Rep. 412. Labatt M. & S., sec. 440.
The defendant insists that “cooning” across the ropes from one trestle to another was an act so obviously dangerous that no prudent man would have attempted it. The record does not sustain this view. To say the least of it, the evidence on the subject was conflicting and the defendant, by its instruction No. 5, which was given, submitted the question to. the jury, and their verdict in favor of the plaintiff is the end of that controversy.
We are of opinion that the case was fully and fairly submitted to the jury, upon evidence amply sufficient to sustain their conclusion, and that upon well settled principles their verdict cannot be disturbed. The judgment complained of must, therefore, be affirmed.
Affirmed.