105 Va. 708 | Va. | 1906
delivered the opinion of the court.
This is an action from the Circuit Court of Tazewell county, brought by William Williams to recover damages from the Pocahontas Collieries Company for a personal injury received by him while working as a miner in the employment of the company.
The evidence tends to prove that Williams and one Grant Poe applied to the Collieries Company for employment. Their first interview on the subject was with P. S. King, who was at that time mine foreman of the Pocahontas Collieries Company. Williams was wholly unacquainted with coal mining, but had done some work at the Bertha zinc mines. Grant Poe had been formerly employed by the Pocahontas Company, and had had some experience as a coal miner, and the evidence tends to prove that Poe, in the presence of Williams, waived instructions from King and assumed the responsibility of going to work, relying upon his former experience. They were set to work on
At the trial the plaintiff introduced himself, Grant Poe, and his surgeon, and rested his case. Thereupon the Pocahontas Company demurred to the evidence, and one of counsel for plaintiff remarked, “All right,” or “Very well,” or words to that effect, and desired time for consultation. After a short recess the court convened, and counsel for the plaintiff then stated to the court that the defendant had taken and filed the deposition of P. S. King; that the deposition had not been read
Upon the demurrer to the evidence the jury rendered a verdict of $1,500.00 in favor of the plaintiff, upon which the court entered judgment; and to this action of the court the defendant again excepted and tendered its second bill of exceptions, which was made a part of the record.
Section 3367 of the Code provides that a deposition, \f not read on the trial by the party taking it, may be read by the other party. There can be no doubt, therefore, that the plaintiff might have read this deposition in the first instance. It is equally certain that, the defendant was in no respect prejudiced by the plaintiff’s reading it at the time it was done, instead of doing so before the announcement was made that the ease was closed.
A large latitude is allowed the trial courts in controlling the order in which proofs shall be introduced before them, and it would be a most unusual case (though we do not mean to say one might not occur) in which the judgment of the trial court would be reversed for that cause alone. It is true that after the plaintiff rested, the defendant, to maintain the issue on its part, recalled William Williams, the plaintiff, to the witness stand and asked him a number of questions, and introduced as
In our view of the evidence, the responsibility of the defendant company turns upon a very narrow point. The defendant knew that Williams was wholly ignorant of mining; it knew that on Monday morning before he went to work a change in the condition of the mine had taken place, accompanied with more or less danger; that a hole had been drilled in the side of the mine into which a blast of powder had been introduced ; that it had been fired; that the coal had not fallen; and that it had been loosened by the effects of the blast.
The question of whether the servant should have been warned is always for the jury upon the evidence.
“It is the duty of the master to inform an inexperienced servant of the dangers ordinarily incident to the service, and if he fails to do so, and the servant has no opportunity to learn of them, he will not be held to assume risks not obvious to one of his age, experience and judgment.” Richmond Locomotive Works v. Ford, 94 Va. 627, 27 S. E. 509.
This seems to be a stronger case, for here was a specific source of danger arising after the servant, known to the master to be wholly inexperienced, had left work on Saturday, and occurring Monday morning before his return. We cannot say as a matter of law, that under such circumstances, the jury were not warranted in holding it to have been the duty of King, the mine foreman, to call the attention of Williams and Poe to the changed situation and its dangerous character.
Put it is said that the accident was caused by Joe Manees, a fellow-servant of Williams. It may be true that the coal
TJpon the whole case, we are of opinion that the judgment should be affirmed.
Affirmed.