51 W. Va. 318 | W. Va. | 1902
Louis Sesler in an action in the circuit court of McDowell County recovered a verdict and judgment against the Rolfe Coal
The Jirst complaint against the judgment is the overruling of a demurrer to the declaration. The declaration contains two counts. The first count alleges that the defendant owned and operated a coal mine and tipple, the tipple being used in unloading mine cars of coal into railroad cars for shipment to market, and that the plaintiff was the servant and employe for hire of the defendant, engaged in repairing the stone foundation of the tipple, and that while so engaged, it was necessary for him to go under the tipple for the purpose of repairing and building the foundation of the tipple; and that it was the duty of the defendant to furnish the plaintiff a safe place for him to wo.rk; yet the defendant did not use proper care in providing such safe place, and that the defendant placed the plaintiff under the wood work of the tipple and negligently caused the wood work to be knocked down while the plaintiff was at work in his place of duty as such servant, and negligently caused a large piece of timber of the tipple to fall upon the plaintiff, whereby he was permanently injured, as furthej' specified in the declaration. To this count, as a plain count based on the relation of master and servant, there is no objection made by counsel; the objection goes to the second count. This second count states that the plaintiff entered into a contract with the defendant by which it was agreed that for a certain sum of money the plaintiff was to erect, construct and repair the foundation of the tipple, and then alleges that the plaintiff “thereby became the servant a,nd employe of the defendant for hire and reward, and then and there engaged in the work of the defendant in erecting, constructing and repairing the foundation of the tipple, and while so engaged in the discharge of his duty it became necessary for the plaintiff to go under, upon and about the tipple.” The count then av.ers that: “It became and was the duty of the defendant to furnish for the plaintiff while ho was so in its employe a good, proper, sa fe and suitable place for him to work, so that he might he secure and safe in all respects from injury against which ordinary care and foresight could avail.” The count then avers that the defendant did not use proper care in providing a safe place for the plaintiff to work, but that on the contrary the defendant put the plaintiff to work under the wood-work of the tipple and negligently caused the wood-work
It is urged before us that as this second count states a contract to do work, it created no relation of master and servant, and did not place the defendant under that duty resting on a master for the safety of his servant, namely, the duty to give him a safe place in which to work. What duty by law is due from an employer to one who is an independent contractor to do a sjDecific work ? It is not that of a master to a servant. 1 Thomp. on Negl. s. 680. But though this is so, the averment of the declaration that a duty of master to servant rested on the defendant, is merely an averment of matter of law, not of fact, and as a declaration need not, should not, aver matter of law, we treat such averment as harmless surplusage. Hogg, Plead. & Prac. 59. This is not the case of a mere trespasser or licensee going upon the premises of another and receiving hurt, as discussed plainly by Judch? Ewglistc in Woolwine v. Railroad, 36 W. Va. 329. Bather does the case fall in .that class of cases where one going upon the premises of another, by invitation of that other; and receives hurt. We do not mean one invited merely by courtesy to visit; such a person takes the premises as he finds them. 2 Jaggard Torts, s. 258. By one going upon promises under invitation, I mean invitation in a legal sense. “To come under an implied invitation, as distinguished from the mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried' on there. There must be some mutuality of interests in the subject to which the visitor’s business relates, although the particular thing which is the subject of the visit may not bo for the benefit of the occupant.” 3 Ell. on Railroads, s. 1249; Plummer v. Dill, 32 Am. St. R. 463; 2 Bailey, Personal Inj. s. 3183. The plaintiff was upon the premises of the defendant at the call, of business and was there under legal invitation, and not a trespasser or licensee. So, treating him as an invitee, the question arises, What duty did the company owe him ? That very late great work, Thompson’s Commentaries on Negligence (2d Ed.) vol. 1, s. 979, says: “It is not necessary to suggest that where a proprietor engages an independent con Ira dor to do work upon his premises, the contractor, while executing the work, will be there in pursuance of the invitation
In 26 L. R. A. 524, note, the laAv is, I think, correctly stated as folloAvs: “With few exceptions, the cases agree in holding that the premises upon AAdiich an independent contractor is required to labor for the benefit of the oAvner must be reasonably safe for the purposes of such labor, so far as freedom from concealed danger is concerned.” We may thus say, that if the decision of this case does in fact rest on any dirty arising merely from the relation of the parties because of the contract betiveen them, the unsafety of the premises must be such as ivas knoAvn, or by fair care could haAre been Ioioaaoi to the defendant, and AAras unknoAvn, and by fair care could not have been knoAAm to the contractor; for it is very clear that if the plaintiff kneiv, or by fair care could have knoAAm of the Avork AArhich injured him, he cannot recover. Whart. on Negligence, s. 833. It is avcII established that if one knows, or by fair care could know of danger threatening him, he cannot encounter that danger, and charge his injury upon the owner of the premises even though that owner be in fault. Such Avould be even the laiv betAveen master
If we base the count on any peculiar duty growing out of that contract relation, the count is bad. But treating the averment of this contract merely as matter to show that the plain-iff was upon the defendant’s premises, not as a trespasser or mere licensee, but by invitation of a business engagement, as the count avers that the defendant carelessly and negligently caused the wood-work of the tipple to be knocked down and a piece of timber to be thrown upon him, the count is good without such additional averment. We have a liberal rule in this respect under which a general charge of negligence is sufficient. Hawker v. Railroad, 15 W. Va. 628. This count avers no defect in the premises whatever. It does not proceed upon the idea of unsafety inherent in the premises, known or knowable to the defendant and unknown and unknowable to the plaintiff. It does not state any facts showing any peculiar duty, save ordinary care arising out of that contract, or the particulars wherein the duty was broken. It simply states that the plaintiff was lawfully upon the premises, and that the defendant, while the plaintiff was executing his contract in masonry work, by negligence threw down a piece of timber upon the plaintiff. Iteally, that is the test of this case as made by that count, and in fact, as made by the plaintiff's evidence. I do not see that the existence of that contract made any peculiar relation carrjung with it any peculiar duty between the parties. As both the plaintiff and the ^defendant were lawfully engaged each in his separate work, the question is simply, outside of a promise below mentioned, did the defendant so negligently conduct its caipenter work as to endanger the plaintiff ? If so, did the plaintiff, knowing that this work was going on and that it was dangerous, so knowing, did the plaintiff, nevertheless, go on with his work or do any act disregarding the danger from the plaintiff’s work and thus as-
The defendant offered to prove that it was a rule of the company to have the carpenter’s work proceed on one part of the tipple and the masonry work on another part, so as to save those engaged in the masonry work from injury from timbers falling from above in the process of their removal; but this evidence was objected by the court. If such a rule existed, known to the defendant, and he violated it, the evidence was admissible. Davis v. Nuttallburg Co., supra; Gregory v. Railroad, 37 W. Va. 606.
The plaintiff was permitted to prove that a man hauled stone under that part of the tipple where the carpenters were engaged in work. It seems they were engaged on one part of the tipple and the plaintiff on another part. Was this evidence introduced to show negligence in other respects than as' to the plaintiff? To show negligence generally? The evidence was not admissible. It was not shown to be the master’s act. But the driver of the wagon is not suing. Suppose the company was negligent in exposing that wagoner, does that show that it was negligent to the plaintiff in any respect? The plaintiff did not receive his injury from hauling stone under that tipple. What had it to do with the plaintiff ?
The court erred in admitting a deposition of Sagoda., because there was no evidence to show his death, absence or other circumstance to warrant the admission of the deposition. Code, chapter 130, section 36; Barton L. Prac. 4-19.
The court refused questions as to whether the plaintiff, in other jobs of work for the company, worked at masonry when the carpenters worked on the tipple above. It seems they ought to be admitted as tending to show that the plaintiff knew of the dangers of so doing and assumed their risk on this occasion. However, the court committed no error herein, for the reason that the questions did not import that certain answers favorable to the plaintiff must be given, and we cannot say whether the defendant was prejudiced from refusal of the questions. Where a question is refused by the court, it ought to be shown what was proposed to be proven, unless the question necessarily imports a particular answer; and if the question is answered against objection, the answer ought to be given; otherwise no reversible error exists. Union Central Co. v. Pollard, 94 Va.
The court erred in allowing plaintiff to prove that he was a married man with three young children. The United States Supreme Court in Pennsylvania Co. v. Roy, 102, U. S. 451, held: "In such a case the injured passenger being entitled only to compensatory damage, evidence of his poverty, or the member and ages of his children, is irrelevant.” This Court has held such evidence improper and its admission erroneous. Moore v. Huntington, 31 W. Va. 842. It is very readily perceptible that this evidence a]rpealed to human sympathy and tended both to induce a verdict .for the plaintiff and to aggravate damages. Where improper evidence is given it is presumed to work injury, unless it very plainly appears not to have done so. Taylor v. B. & O. R. Co., 33 W. Va. 39. In O’Hagan v. Dillon, 76 N. Y. 170, the court well said what ought to be impressed upon trial courts with emphasis: “Jury trials should be strictly confined to the issues made and to the legitimate facts bearing on them, and the practice of dragging in extraneous matters to influence a jury cannot be too strongly condemned. Upon a closely contested question of fact, slight influences may turn the scale, and every rule of propriety and justice demands that nothing outside of the legitimate facts should be introduced to affect the minds of those who are to decide the question.”
We will not pass upon tire evidence under the motion for a new trial, but will let the ease go back to the circuit court to be tried upon the evidence without decision as to its effect by us; but as matter of law pertinent to the case, we will say, that if in fact the defendant’s superintendent did promise the plaintiff that he would before one o’clock take down all the old timbers that were to be taken down that day, and that the plaintiff being misled by that promise went from bent 5 to get those plank for the purpose of his work, and relying upon that promise, and not
For reasons above stated we reverse the judgment, set aside-the verdict and remand the case for a new trial.
Reversed.