57 W. Va. 595 | W. Va. | 1905
The various assignments of error presented by the record can be reduced to two questions; one is, did the court err in giving instruction No. 4 for the plaintiff, which is in the following language: “The court instructs the jury that the plaintiff had a right to rely upon the statements of the mine boss, as true, and if they believe from the evidence, that plaintiff was assured by the mine boss that the place where he was sent to work was safe, the plaintiff was not guilty of negligence in relying upon the statement made to him by the mine boss, as true. ” This instruction presents the question, was the plaintiff, while engaged in working for the defendant in its coal mine, lulled into a feeling of security and safety by the mine boss; as to whether or not a certain place in the mine at which the plaintiff was directed to work was a safe place; and, if so, was the act and conduct of the mine boss in making such representations the act of a vice-principal of the defendant, or the act of a fellow-servant? If the act of a vice-principal, then if the plaintiff has brought himself within the well defined rules laid down by this Court, he could recover; but if the representations were made by a fellow-servant, although the plaintiff was thereby lulled into a feeling of security and safety, then he could no more recover for the wrongful act than he could for any other negligent act of .such fellow servant. The case of Graham v. Newburgh O.
The other question presented is, whether or not the verdict is supported by the evidence. The plaintiff claims that Floyd Dillon, the mine boss, was incompetent, and that, by reason thereof, the injury of which he complains, was sustained This brings up for our consideration, first, the exceptions of the defendant as to the admission of the evidence of the plaintiff, Ed. Owens, and Webster Poling. These witnesses were permitted to give their opinions as to the incompetency of the mine boss. This is not the proper mode of proving such incompetency. The question as to whether or not the mine boss was incompetent was the very question upon which the jury were called to pass, and, therefore, opinions of witnesses should not be given, but facts should be stated by the witnesses, and from these facts the jury permitted to draw the proper conclusions. “But engineers, conductors and others skilled in railroad matters, like other experts, are not allowed to give their opinions as to whether ordinary care of prudence has been exercised in the matter in controversy, or as to the competency of another person to perform his duties.” Jones on Evidence, sec. 383. And in the case of Cherokee & Pittsburg Coal & Mining Co. v. John Dickson, 55 Kan. 62, it was held: “Where one of the principal ques
This opinion evidence being inadmissible, then there is no evidence from which the jury could conclude that the mine boss was incompetent.
The plaintiff claims that the defendant failed to furnish him a safe place to work, but, whether this be so or not, the plaintiff knew of the danger which he says rendered the place unsafe, and, knowing of the danger, voluntarily encountered it, and, having done so, he is charged with having assumed the extra hazard, and, for that reason, cannot recover. It is the master’s duty to furnish his servants a safe place, and when the servant enters the employment of the master, he may presume that the master has done so; but this is only a presumption, and when it is apparent to the servant that the place is unsafe, and he then continues in the employment, he thereby assumes the additional risk.
It may be thought that we have dealt somewhat summarily with this question, but the principle is so well settled that a continued discussion of it will serve no good purpose.
For the foregoing reasons, the judgment of the circuit court is reversed, the verdict of the jury set aside, and a new trial awarded.
Benersed.