64 W. Va. 474 | W. Va. | 1908
This case is a companion of Newhouse v. Kanawha & W. Va. R. Co., 59 S. E. 1071. In that case, as in this, the court below sustained the motion of the defendant to strike out the plaintiff’s evidence and direct a verdict for the defendant. We reversed the judgment below in the Newhouse ease, being of opinion, that the evidence made such a prima facie case of negligence as entitled the plaintiff to have the same submitted to the jury. Since that decision, but pending a petition here for a re-hearing, this case was tried and determined in favor of the defendant, as stated.
The plaintiff, an infant, was employed by defendant, along' with Newhouse and others as a day laborer, in building a railroad from Charleston by the way of Elk River and Blue Creek to a point on said Creek. The road was not completed, but some trains were being run while the work of construction was still going on. The plaintiff by arrangement with the company', was with the other laborers carried to and from his place of employment along the road, and to and from his boarding place, on the work train of the defendant, consisting of an engine and a flat car. At a point near the defendant’s track on Blue Creek, was a stone quarry, and where, by permission of the company, a derrick used in load
It did not appear in the Wewhouse Case that the derrick in question belonged to Tully, and had been employed by him as an independent contractor, and, as now appears in this case, that the accident, resulting in the injuries to plaintiff, was directly traceable to the negligence of Tully, or his employees, in loosing the guy-ropes and allowing them to sag, and to remain in that condition, as stated, when encountered by the work train.
The general rule, relating to master and servant, requiring evidence of some affirmative acts of negligence of the master, either of omission or commission, pertaining to his duties to his servant, in order to render him liable to the servant for injuries sustained, was thought, in the Wewhouse Case, to be satisfied by the evidence tending to' show the sagging of the guy-ropes, and notice thereof to the defendant on the out
In the Newhouse Case the defendant relied bn the want of evidence to show negligence of the defendant. In the present case negligence is not only shown but admitted. But the defendant relies on the proposition that the negligence being-primarily that of Tully, an independent contractor, or his employees, its whole duty to the plaintiff to provide him with a reasonably safe place to work, was discharged when it employed Tully, a competent person, and permitted him to suspend the guy- ropes in question over its track, and, as counsel for defendant say in their brief, we are brought face to face with the question, what is the duty of a railroad company under the circumstances of this case ?
The general rule with respect to the liability of the owner for the acts of an independent contractor, as stated in 1 Thomp. on Neg. section 621, is “that one who has contracted with a competent and fit person exercising an independent employment to do a piece of work not in itself unlawful, or of such a nature that it is likely to become a nuisance, or to subject third persons to unusual danger, according to the contractor’s own methods, and without being subject to control except as to results of his work, and subject to other qualifications hereafter stated, will not be answerable for the wrongs of such contractor, his sub-contractors or his servants, committed in the prosecution of such work.”
The general rule, stated in the Newhouse Case, is that one of the non-assignable duties of a master is to provide his servant a reasonably safe place to work, this rule with respect to railroads, extending to the entire track over wich the servant is required to pass in the discharge of his duties. And with respect to railroads this is a positive duty, which although entrusted to an independent contractor, will not absolve it from liability for non-performance. 1 Thomp. on Neg. sections 646-665; McCafferty v. Spuyten Duyvile, eto., R. Co., 61 N. Y. 178; Ryder v. Thomas, 13 Hun. (N. Y.) 296.
But let us inquire whether Tully, the contractor, stood in the relation of independent contractor with respect to the' operation of the railroad and furnishing the plaintiff a rea
But if we concede the independence of the Tully contract, and that by its terms, or by implication, it covered the discharge by the defendant of its duty to plaintiff to maintain a reasonably safe place to work, the effect of such contract was simply to delegate to Tully performance of the non-assignable duty of the defendant, rendering it liable for the negligent performance thereof by him. 4 Thomp. on Reg. section 4931, citing among other cases, North Chicago St. R. Co. v. Dudgeon, 83 Ill. Appel. Ct. 528; s. c. aff’d. 184 Ill. 477; 56 N. E. Rep. 596; Woodman v. Metropolitan R. Co., (Mass.) 21 N. E. Rep. 482; Moran v. Corliss Steam-Engine Co., (R. I.) 45 L. R. A., 267; Toledo Brewing Co. v. Bosch, 41 C. C. A. 482, 101 F. R. 530; see also 2 Bailey on Per. Inj. sections 2561, 2572, citing Burnes v. Kansas City Ft. S. & M. R. Co., 129 Mo. 41, 31 S. W. 347; Trainor v. Phil. & R. R. Co., 137 Pa. St. 148; Titus v. Bradford B. & K. R. Co., 136 Pa. St. 618, 626; Carrico v. W. Va. Cent. & P. Ry. Co., 39 W. Va. 86, 93; Jackson v. N. & W. R. R. Co., 43 W. Va. 382-383, and McCreary's Adm’x. v. Railway Co., 43 W. Va. 112, 27 S. E. 327.
In the North Chicago St. R. Co. Case this rule was applied in an action for damage by a railway conductor for in-
Two other propositions are argued by way of defense: First, that having employed a competent independent contractor to perform a part of the work of constructing its road bed, and permitted the erection of the derrick ropes over its track, the defendant is not liable for his negligence without actual notice in time to avoid the injuries; and, second, that it is not shown that defendant had notice of the condition in which the guy-ropes were left by the contractor shortly before the accident, and in time to have averted the danger; and consequently, that the risk must-be regarded as one assumed by the plaintiff, and for which defendant can not be rendered liable. To support the first proposition defendant’s counsel rely mainly on the case of Norfolk & Weston R. Co. v. Stevens, 97 Va. 632, where it was held, agreeably to the general rule, but without any reference to the exceptions thereto, that “the negligence of a bridge company as an independent contractor, in removing too soon the false work on a new railroad bridge which it had contracted to substitute for the old one without the interruption of traffic, in consequence of which the new bridge’falls with a train, causing the death of a fireman, does not render the railroad company liable, if it had a proper contract with the bridge company, and that was an established and reputable concern, largely engaged in such work and having the confidence of the business public.” In the opinion the court says: “Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence, and the unbending test of negligence, in methods, machinery and appliances is the ordinary usuage of business. No man is held by law to a higher degree of skill than the fair average of his profession, or trade, and the standard of due care is the conduct of the average prudent man.”
We do not think this case takes into consideration the well recognized exceptions to the general rule we have referred to. The positive duties of a railroad company to its employees, already noted, in connection with citations of other cases, cannot be discharged by the delegation of those duties to others, whether competent or not. The Virginia case is
Did the defendant have notice sufficient to charge it with the negligence of the contractor? This is the difficult question in the case. It is true as argued by defendant’s counsel, that the master is not an insurer of his servant’s safety; and is “not answerable at law for a failure to avert or avoid peril that could not have been foreseen by one in like circumstances, and in the exercise of such care as would be characteristic of a prudent person so situated.” 1 Labatt, section 142. Knowledge actual or obtainable by reasonable tests and inspections are required to charge the master. 1 Labatt, chapter's X and XI. In notes 2 and 3 to section 156, chapter XI, Mr. Labatt has collated a large number of cases where the servant under varying facts and circumstances was not allowed a recovery; and in note 5, to the same section, a great many other cases, more or less difficult of reconciliation with the former, where the servant was allowed to recover, and it would serve no ¿bod purpose here to attempt to harmonize these conflicting decisions. Many of them relate to defects in machines or instrumentalities actually in use by the servant, and not to the safety Of the place of work; many to hidden defects.
Assuming that the guy-ropes over the track were and had been securely fastened during the operation of the derrick, and up to within a half hour before the accident and did. not when thus used render the track at that point unsafe, as to which there is no evidence to the contrary, was the defendant chargeable with notice of the dangerous condition in which they had been left by the servants of Tully, the contractor, a half hour before the accident occurred, so as to render it liable to plaintiff? No amount of inspection prior to the time when the ropes were loosened would have discovered the dan
We are disposed to hold, on these authorities, and this evidence in this case, that as to the maintenance of the track in a reasonably safe condition, at the point opposite this derrick, Tully’s relation to defendant was that of vice-principal, and that notice to him of the condition in which he had left the guy-ropes must be imputed to the defendant. Besides, the defendant evidently had notice from the progress of the work of the contractor to completion, and by setting the car there to remove the derrick, that it was about to be taken down, and of the dangers incident thereto, calling for greater care and superintendence on its part. This rule was applied in Rhode Island; in Moran v. Corliss Steam Engine Co.
In our opinion, therefore, the defendant having permitted the erection of this derrick so near to its tracks, supported as it was by these overhanging guy-ropes, was bound in the discharge of its non-delegable duty to its servants, to keep a watchful supervision over it; and that by the progress of the work, and by setting the car there for the removal of the derrick it was thereby chargeable with sufficient notice to re- ' quire diligent supervision and inspection, necessary to avert the dangers incident to the work. Otherwise it could not have discharged its duty to its servants. These views require a reversal of the judgment and awarding the plaintiff a new trial.
Note: In his petition for a rehearing defendants counsel challenge the correctness of the opinion filed. They say it is in conflict with Sanderson v. Panther Lumber Co., 50 W. Va. 42, and that if it is intended to overrule that case we should say so. _ That was a fellow servantcy case. In reference to the facts recited, and the basis of the decision, it is said, at .page 45: “So the condition of the track cannot and should not have anything to do with the determination of this case,, especially as the plaintiff admits that it was the negligence of the engineer in reckless management of the train and engine,
On the question of what is sufficient notice to the master in the case of defective machinery, applicable also to a safe place to work, this Court said, in Riley v. Railway Co., 27 W. Va. 160, “It may also be observed that, according to the rules and principles hereinbefore stated and discussed, the knowledge of the unsafe or the defective condition of the machinery, &c. mentioned in said third proposition, if brought home to the servant or middleman, to whom the duty of remedying or repairing such machinery, &c. has been delegated, or if he by the use of due care and diligence ought to have discovered it, will be considered notice to or knowledge by the company. What is notice to such servant will bé
The doctrine of the case of Norfolk &c. Ry. Co. v. Stevens, 97 Va. 632, is again urged for consideration, and as propounding the correct rule of law applicable to this case. As we pointed out in the opinion, that case failed to recognize the exceptions to the general rule stated, governing this case, and which in our opinion should have controlled that case also, and for which it has been criticised. No court, so far as we have found, has approved it, and it is opposed, not only by our own cases, but by many other decisions.
Out of respect for the able counsel for defendant and on account of the vigor with which he has pressed the subject upon us, as well as our great desire to reach proper conclusions, we have carefully re-considered the opinion, and re-examined the many text books and court decisions on the subject, and after having done so we have come again to the deliberate judgment that we have announced no new principle, nor departed from the well beaten path marked out by the authorities cited and many others that might be cited in the support thereof.
Reversed and New Trial Awarded.