71 W. Va. 334 | W. Va. | 1912
Marion Peterson recovered a judgment for $15,000.00' against the Paint Creek Collieries Company, in the circuit court of Kanawha county, as damages for loss of an arm, alleged to have been caused by the negligence of the defendant. He was a motorman in the employ of the company and the arm was injured by a fall of stone, slate or shale at a place near the mouth of the mine while he was coupling cars. Shortly after the injury, it became necessary to amputate the arm in order to save his life.
The seven counts of the amended declaration, a demurrer to which and each count thereof was overruled, proceeds upon two theories, the assumption of the duties of the mine boss by the company itself through its manager, and failure of the defendant to supply timber and materials for shoring up the roof of the mine at the place at’which the accident occurred,
The second count charges bad condition of the place and that the mine boss reported to the operator his inability to comply with his duties, imposed by the statute, respecting measures,
The third and sixth counts, showing no more than notice of the defective condition of the roof by the mine boss to the defendant, ignorance of this condition by the plaintiff and failure of the defendant to remedy the defect and consequent injury to the plaintiff, fails to show any ground of liability, since the statute makes it the duty of the mine boss to keep the haulways and working places in a safe condition, the mine owner furnishing the materials of course. They charge no neglect of duty on the part of the owner in this respect, nor show any demand or requisition for materials or any knowledge of the lack thereof on the part of the owner. The sixth avers defendant’s knowledge of the defective condition of the roof at a time some weeks prior to the injury and, upon that, charges duty to exercise reasonable care in inspecting the place and keep the passage
To first and fifth, charging usurpation of the duties of the mine boss by the operator and the exclusion of the former from his duties and functions in the mine stand upon a different footing. Under the statute, the owner or operator of a mine is absolved from certain duties and liabilities by his employment of a mine boss. In the operation of a mine without a mine boss, his status is that of an ordinary employer of labor and he remains subject to that general mass of law defining the rights, duties and liability, incident to the relation of master and servant. If, having employed a mine boss as the law requires, he oust him from the duties devolved upon him by the statute and undertakes to perform them himself, he stands logically and practically in the same situation as if he had not employed him at all. He does that which the statute forbids and fails to obey its command as to those things which he assumes to do in the place of the mine boss. Under such circumstances, the protection of the statute cannot be reasonably invoked, because the relation does not exist. It requires compliance with the statute in substance and effect to confer upon the mine boss the independence and superiority, accorded to him by the-decisions in Bralley v. Tidewater &c. Co., 66 W. Va. 278, Squilache v. Coal & Coke Co., 64 W. Va. 337, and other cases cited in the brief for the plaintiff in error, the doctrine of which is not at all questioned or impaired by this conclusion. As to these counts, we are of the opinion that the demurrer was properly overruled.
The fourth and seventh counts, charging notice of the defect,
The evidence to sustain the two theories of liability, set forth in the declaration, goes back in date more than one month before the occurrence of the injury. None of it indicates usurpation of the powers of the mine boss in charge at the date of the injury nor any ouster or exclusion of that official by the operator or its agent. Neither is there any evidence of notice by that mine boss to his employer of his inability to remedy the defect in question or demand by him for machinery or materials necessary to enable him to remove or remedy the same. Evidence was adduced, tending to prove exclusion of a former mine boss or usurpation of his powers by the defendant’s manager and notice to the latter of the former’s inability to remedy the defect and a promise on the part of the manager to do the work himself, or cause it to be done, upon which the mine boss relied as matter of excuse for his failure to do so. This occurred in December, 1907, when one Parsell was the mine boss. On the last day of January or first day of February, 1908, Parsell ceased to be the mine boss and one Edward Morris took his place. Thereafter, on the 3rd day of March, 1908, the plaintiff was injured by the falling of rock or slate from the roof. As to the character of the defect, whether latent or apparent or discoverable by inspection, there is much conflict in the testimony, the . defendant claiming the rock which fell was
In this conclusion we'have not overlooked the effort to prove a demand by Morris upon Kern, the mine superintendent, for timbers and materials and Kern’s promise to supply them and his failure to do so, by the testimony of the plaintiff and witness Koontz. On cross-examination, Morris was asked whether he had not stated to Peterson and Koontz that he had notified Kern, the superintendent, that the place was dangerous and required timber to fix it and make it safe, and that Kern had told him he would send the timber and have the place made safe. Morris said he had not, but that he had had a conversation with Kern about timbering the mouth of the mine after the injury of Peterson, because the workmen, after that, had become nervous about it, — “suspicious of it,” to use his terms. He was also asked whether he had not, in the same conversation, said Kern had failed to supply the timber and he had himself gotten three posts and done the best he could before the accident. This Morris also denied positively. Peterson, in his rebuttal testimony, says Morris made the statements and had said he made the demand before the accident. Koontz also says he admitted he had notified Kern that the place was dangerous and Kern had said “Well, we will timber it,” or words to that effect. If adimssible at all, this evidence contradicts 'Morris
As the case stood at the time, the evidence was inadmissible for the purpose of impeachment. Whether Morris had given such notice or made such a demand was not in issue in the sense of evidence pro and con. Morris had not then denied it and nobody had asserted it as matter of evidence. The question propounded to him was not inconsistent with anything he had said. At that time, it was wholly outside of any issue developed by the evidence, and brought before the jury a collateral matter in an effort to discredit the witness. Under principles declared in State v. Goodwin, 32 W. Va. 177, the plaintiff was bound by Morris’s answer as to his alleged admission and could not adduce evidence to contradict it. Whether the cross-examining party would be entitled to prove the matter inquired of as a part of his case determines its character as to materiality. If the cross-examining party cannot prove the matter as a part of his case it is collateral and not a subject of cross-examination for ground of impeachment, unless the witness has made it a subject of his testimony in chief. State v. Goodwin, cited. Morris had made no reference to his alleged admission in his testimony in chief, and the plaintiff could not have proved it as a part of his-case, for it was made, if at all, long after the accident and was no part of the res gestae. To bind his principal, the declaration of an agent must have been a part of the res gestae. Hawker v. Railroad Co., 15 W. Va. 628; Corder v. Talbott, 14 W. Va. 277; Clark & Skyles on Agency, pp. 1029-31, secs. 468, 469. Hence the trial court should have sustained the objections to the offers of proof of the admission.
Section 11 of chapter 154 of the Code makes it the duty of the
We are asked to re-examine and overrule this line of decisions, notwithstanding our recent re-examination thereof. Nothing is found in the brief, however, that has not been carefully and thoroughly considered. The variance of the terms of our statute from those of the Pennsylvania statute has been deemed insufficient to justify'a construction different from that adopted by the Pennsylvania court, and the reasoning of the Indiana and Illinois courts, leading to a different construction, has been carefully considered on former occasions, and held insufficient, in our opinion, to warrant the overruling of the decisions, complained of.
At the time of the injury and for a month prior thereto, Morris was in charge of the mine as mine boss, unrestrained by any limitation upon his powers and unexcused from duty, so far as the evidence discloses, by any promise or undertaking on the part of the manager to perform any of such duties for him, if, indeed, such an undertaking or promise would constitute an excuse for his neglect to perform them. He was no party to the conversation between the manager and his predecessor, Parsell, in the preceding December, nor does he appear to have had any knowledge of it. He says he made daily and thorough inspections of the roof and took down a great deal of slate in dangerous places and put up props in others. As to some of this his testimony is contradicted by alleged admissions, but, if it is false, there is proof of no more than neglect of duty, resulting in injury to a fellow servant for" which, under the law, there is no right of recovery against the employer.
Plaintiff, a motor runner, was injured while coupling cars in the absence of the man employed for that purpose. Defendant’s instruction No. 1 would have told the jury he could not recover, because he was injured while away from his post of duty. The evidence shows it was customary for the motor runner to couple cars in the temporary absence of the ear coupler. That alone justified the court in refusing the instruction. Defendant’s instructions Nos. 4, 8 and 9, absolving the defendant from liability from injuries resulting from neglect of duty on the part of the mine boss, were improperly refused. Defendant’s instruction No. 12, intended to advise the jury against right to find for the plaintiff on the theory of incompetency of the mine foreman was improperly refused, since there was no allegation of his incompetency nor any.evidence tending to prove it. Defendant’s instruction No. 14 was substantially the same as Nos. 4, 8 and 9 and should have been given. Defendant’s instruction No. 15 denying right of recovery unless the jury should find the place at which the accident occurred unsafe when the defendant took charge of the mine and began to operate it, was properly refused, it appearing that the defendant had bought out another company sometime prior to the action. The instruc
Pour of the ten special interrogatories asked for by the defendant were refused. The object of one of these was to obtain a finding as to when the roof of the haulway became unsafe, if at all, and what particular act of negligence was the proximate cause of the injury. Another asked for a finding as to whether mine boss Morris was relieved of any duty through the defendant’s general manager. Another was in substance the same as the one just described. Another was intended to ask the jury whether plaintiff was injured by reason of the incompetency of the mine foreman. The last three were properly refused because they relate to matters as to which there was no issue. The first one was properly refused because of its generality and inconclusiveness.
On cross-examination of witness Lavender, the court sustained an objection to a question as to the character of fallen slate in the mine. This was matter as to which he had not testified in chief. Hence, he was defendant’s witness and there was no showing as to what his answer would have been. Moreover, the defendant was not entitled to propound such a quest'on on cross-examination. He should have introduced the witness as his own for the elicitation of such evidence. On the cross-examination of Parsell, the court sustained an objection to a question as to why he did not call on the defendant’s agent in charge of timber and make him furnish such timber as he needed. In this, the court did not abuse its discretion. The witness had already repeatedly given his reason for not demanding timbers. The court struck out, over the objection of
For the errors noted, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and Remanded.