delivered the opinion of the court.
This suit was brought to recover damages for the alleged injury of the plaintiff by the defendant company, a coal mining corporation. At the trial of the cause there was a demurrer to the ’evidence by the defendant company, which was overruled, and judgment given the plaintiff for the damages ascertained by the jury. This ruling of the trial court is brought under review by writ of error awarded by one of the judges of this court.
Viewing the evidence from the standpoint of the demurrer thereto, the following are the facts appearing in the record. The plaintiff, Ivory Williams, a youth of 'eighteen years, was, at the time of the injury of which he complains, in the employ of the defendant company as motorman at the mining operation of the company known as Roda Mine No. 2. Mine No. 2 is connected with Mine No. 1—that is to say, the entrance to both is the same; one branches off from the other about eight hundred feet from the drift-mouth of the entry. There is a track entering the mines known as the “load track” on which cars loaded with coal are pulled out of the mine with electric motors, and another track entering the mines called the “cut-around track.”
On the evening that Williams was injured, which occured shortly before seven o’clock p. m., the two night crews were preparing to go into the mines—Brock into Mine No. 1, and Davis into Mine No. 2. Williams reported for duty about 6:30 o’clock and had been around on the premises near the drift-mouth for about fifteen minutes, a part of which time was spent by him at and around the motor house, when Davis, his foreman, ordered him to take his motor (which was standing on the “cut-around” track near the sand house) into the entry beyond the timber track switch (which, as before stated, was situated right at the mouth of the entry) so that motors “D” and “E”
Brock, in accordance with the directions of Davis, or in accordance with the understanding between them, ran the big motor into the mine, so that, as before stated, the end of the car-load of lumber was from 25 to 35 feet from the drift-mouth, or the point of the switch, the point of the switch being at the drift mouth. Brock then set the brake on the big motor and walked back on the “cut-around” track to near the sand house where Williams was with his motor, and Williams was then directed by Davis to pull his motor up past the point of the switch into the drift-mouth, and back it back on the timber track. Williams, without knowledge, as he states, that the car of lumber was standing within the entry, proceeded with his motor into the entry, with the view, and in accordance with what he had been told to do, of taking it to a distance beyond the point of the switch, and there stop and wait until some switching was done and his mine foreman, Davis, joined him. Davis was standing at the mouth of the entry when he ordered Williams to take his motor in, and knew that the car of lumber was standing in the entry and that it was unguarded and with no light or signal on it, but failed to notify Williams of the fact, his only excuse for not doing so being that he thought Williams had seen the car taken in. Williams claims to have looked ahead before going into the entry, but could see nothing. When the rear end of his motor had gotten about four feet into the entry, Henry Cotton, a laborer in the mines, who was either on the rear end of Williams’ motor, or standing near the drift-mouth, noticed the car of lumber standing
Th'e plaintiff, Williams, bases the liability of the defendant company to him for his injuries upon the grounds: First, because the place in which he was ordered to work was in an unsafe and dangerous condition, by reason of the car of brattice lumber being left unguarded within the entry to th'e mines, of which danger he was ignorant, and which he could not have discovered in the exercise of ordinary care; and the defendant company’s foreman, Davis, who was the highest official of the company present at the time, had knowledge of this danger, and the duty of giving the plaintiff, Williams, warning devolved upon Davis, as vice-principal of the company; and that Davis’ negligence in failing to give warning of the danger was the negligence of the company, rendering it liable for the injury resulting to the plaintiff therefrom; Second, that the defendant company was guilty of negligence in failing to adopt and promulgate proper and reasonable rules for th'e conduct of its business.
On the other hand, the defendant company contends that the real cause of the accident to the plaintiff was because h'e did not have the brake on his motor wound up a,s he should have had it, and that if he had had it in working
With reference to this last contention of the defendant company, it is conceded that because of the conditions existing at the entry of the mines it was necessary that the trolley wire be made higher at this point, and that such condition of the wire made it necessary to hold the trolley pole against it. While allowing this condition to exist may not have been negligence on the part of the defendant company, in view of the fact that the uncontradicted statement of the plaintiff that, in addition to the ordinary conditions then existing, a kink in the trolley wire made it necessary for him to give attention to keeping the trolley pole in contact with the trolley wire instead of looking ¿head, the jury would, upon all the evidence in the case, have been warranted in finding that he was not negligent in giving attention at the moment to keeping his pole in contact with the trolley wire instead of looking ahead of his motor, especially in view of the fact that he had a right to rely upon the premises being kept reasonably safe for him to do the work that his foreman had directed him to do.
The case, as we view it upon the facts stated, falls directly within thé rule enunciated in the cases of Lane Bros. v. Bauserman, 103 Va. 146, 48 S. E. 857, 106 Am. St. Rep. 872, and Low Moor Iron Co. v. La Bianca, 106 Va. 83, 55 S. E. 532. The proposition of law stated in the first-named of these cases was approved and followed in the last-named, wherein it is said: “Ordinarily the foreman or boss of a gang of hands employed in executing the master’s orders is a' mere fellow-servant with the other members of the
In this case, while Brock, as a witness for the plaintiff, and Davis, a witness for the defendant company, both state that the plaintiff, Williams, was standing near when the order was given by Davis to carry the car of brattice into the entry, and that Williams could have heard these directions and could have seen the car-load of brattice, carried in, Williams testified that he neither heard the directions given by Davis with respect to the car being carried into the entry, nor saw it when carried in by Brock. As we have seen, neither Brock nor Davis state that Williams heard these directions given by Davis or saw the car carried into the entry, but only that they thought or were under the impression, that he heard the directions and saw the car carried in, so that the jury might have found the fact to be as positively stated by Williams, rather than have concluded from the impressions testified to by Brock and Davis that he did know that the car had been carried into the entry and left there. The testimony for the defendant company given by Owens, its superintendent at these mines, as well as by Brock and Davis, recognizes the fact that Williams should have been warned of the presence’of the car of brattice lumber standing in the entry, if he did not know it to be there; the last two named saying that they would have warned him if they had not thought he had seen the car taken in.
The further contention of the defendant company, that Williams was guilty of contributory negligence in not having the brake on his motor properly wound up, is without merit. The evidence as to how quickly a motor running under control could be stopped with the brake in proper shape not only shows that the motor could be stopped a great deal quicker by reversing the current than by the use of the brake, but further shows the fact that Williams was within two or three feet of the car of lumber when he first saw it, and it was then too late to avoid the collision, even by reversing the current; therefore, the result would have been the same, whatever might have been the condition of the brake. Upon the evidence the jury would have been justified in finding that the condition in which Williams had his brake was not even a contributing cause of his injury.
With respect to the further contention, that Williams was guilty of contributory negligence in running his motor into the mine at excessive speed, and in running his motor further beyond the switch than was necessary, we deem it only necessary to refer briefly to the evidence. As to the speed of the motor, Davis, the foreman, testifying for the defendant company, stated that Williams should have had his controller on the second point. Not only did Williams say, when testifying for himself, that h’e had his controller on the first or second point, but Oalton, testifying for the
The remaining ground of demurrer to the evidence, assigned by the defendant company, is also without merit, viz., that “Williams assumed the risk of the danger which caused his injury.”
Williams testified that he had never known a car of brattice lumber to be left within the entry, and that it was the custom to leave such cars outside the entry, on th’e timber track, while the shifting was being done; and practically all the other witnesses testify that although the day shift frequently left motors standing within the 'entry, it was not customary to leave cars standing therein. It further appears from the evidence that there would be but slight danger of a collision with another motor, or an ordinary car, standing in the entry, on account of the protection afforded by the bumpers. In this instance a car-load of brattice lumber was left standing unprotected within the unlighted entry, with the irregular ends of the lumber extending four feet beyond the bumpers of the car, constituting an unusual danger.
An employee only assumes the risks ordinarily incident to the service, and those known to him or so obvious as to be readily observed by one of his age, 'experience and mental capacity, in the exercise of ordinary care. Southern Ry. Co. v. Newton, 108 Va. 114, 60 S. E. 625; U. S. Leather Co. v. Showalter, 113 Va. 479, 74 S. E. 400.
Upon the whole case in judgment, we are of opinion that
The judgment of the circuit court is affirmed.
Affirmed.