79 W. Va. 365 | W. Va. | 1916
On the morning of August 10, 1913, Roy Simpson, an employe of defendant, was riding on a trip of loaded cars from the drift mouth to the coal tipple, when a wreck occurred, and one of his legs was so badly crushed that amputation was necessary. He recovered a judgment for $2,500, and defendant brings error.
The sufficiency of the declaration was challenged by demurrer, which was overruled, and we think properly so. The drift mouth is a mile or more from the tipple, near which plaintiff and some of the other miners lived. The declaration avers that, in order to go quickly to and from his place of work in the mine, plaintiff was required and permitted to ride the trip; that it was a custom of the miners to do so, well known to defendant; that it was defendant’s duty to use reasonable care to provide safe tracks and appliances to be used by plaintiff in going to and from his work; but that it neglected its duty, in that it. provided an insecure and defective track over which plaintiff had to ride; that the track was out of gauge, was improperly spiked and laid on rotten cross-ties,
It is common knowledge that mine tracks and ears are not •designed for carrying passengers, but it is equally well known that tired laborers will often ride uncomfortable and even unsafe vehicles rather than walk. Most coal companies have promulgated rules warning their employes against riding on • the cars, intended to protect both their employes from injury and themselves from liability therefor. Defendant’s Rule 14 is as follows: “All persons who ride upon any incline, or upon any ear, engine or motor, do so at their own risk.” There is ample testimony in the record, tending to prove that little effort was made to enforce this rule, especially against the men who worked on the night shift, of whom plaintiff was one. He swears he never saw the rule and knew nothing ■of it, and was told by Mr. Altizer, defendant’s foreman, who employed him, to catch the trip at the tipple and ride into the mine, and that it was a custom at the mine for all the workmen to ride. Tom Christian, the night foreman, says he found the men all riding the trip, when he was first employed in the mine, and made no effort to stop it; and other witnesses testify to the same facts. True, there is conflicting •evidence on this question, but the jury were the judges of its weight. The custom or practice of riding the trip was known, or at least should have been known to defendant, if it had been reasonably observant; and its failure to enforce the rule, proves its acquiescence in its violation. It thus tacitly consented to the use of its coal cars as a means of conveying the workmen to and from work, and, thereby imposed upon itself the obligation'to maintain the ears and tracks in a reasonably safe condition, considering the purpose for which such appliances were designed and constructed. It would not be reasonable to expect them to be kept in as safé condition as cars and tracks, built for passenger traffic. Ac
“It is the duty of a railroad company carrying a section hand to and from the place where he works to furnish him a reasonably safe place in which to ride.” Chicago, etc. Co. v. O’Donnell, (Ill.), 72 N. E. 1133; Cicalese v. Lehigh, etc. R. Co., (N. J.), 69 Atl. 166; Heilig v. Railway Co., (N. C.), 67 S. E. 1009; Texas, etc. R. Co. v. Kelly, (Tex.), 80 S. W. 1073; Thomas v. Wisconsin, etc. Co., (Minn.), 122 N. W. 456; and Parkinson, etc. v. Riley, 50 Kan. 401, 34 Am. St. Rep. 123.
The next question is, does the evidence prove a breach of duty? Plaintiff was riding a trip of five loaded cars, drawn by a five ton motor, down a three per cent, grade. All the witnesses agree that the wreck occurred at a curve and that the trip was running “pretty fast,” but the rate of speed is not otherwise defined by any of them. The motorman did not testify, and some witnesses say he was running at about his usual rate of speed, and that “he genei-ally ran pretty fast. ” J. R. Booth, who was riding on the trip, swears he was told to go back and take off the brakes, and that he did so, about five hundred yards above the place where the wreck occurred. Charley Christian, who lived three or four hundred yards from the track, but. in sight of it, says he saw the trip stop, some three or four hundred yards from where the cars wrecked, and saw a man go back over the cars, “lacking the brakes off. ” R. C. Christian, who was also on the trip when it wrecked, says the cars ran something like sixty feet on the
No error was committed by the trial court, prejudicial to defendant, in giving the instruction asked for by plaintiff, or in refusing to give certain others requested by defendant. Some of those given for it state the law even more strongly in its favor than they should have done, especially its instruc
Defendant’s motion to set aside the verdict was properly •overruled, and the judgment is affirmed.
Affirmed.