14 S.E. 999 (W.Va. 1892), Knight v. Cooper

Citation:14 S.E. 999, 36 W.Va. 232
Opinion Judge:hOLT, J.
Party Name:KNIGHT v. COOPER et al.
Attorney:Johnston & Hale and Henritze & Keller, for plaintiffs in error. Okey Johnson, S.W. Williams, and A. C. Davidson, for defendant in error.
Case Date:March 19, 1892
Court:Supreme Court of Appeals of West Virginia
 
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Page 999

14 S.E. 999 (W.Va. 1892)

36 W.Va. 232

KNIGHT

v.

COOPER et al.

Supreme Court of Appeals of West Virginia.

March 19, 1892

Submitted January 22, 1892.

Syllabus by the Court.

1. When a servant enters into the employment of a master he assumes all the ordinary hazards incident to the employment, whether the employment be dangerous or otherwise.

2. The test of liability is the negligence of the master, not the danger of the employment, though the danger of the employment may help to determine the ordinary care required in the case.

3. The mere fact of injury received by the servant raises no presumption of negligence on the part of the master.

4. When a servant willfully encounters dangers which are known to him, the master is not responsible for an injury occasioned thereby.

5. A servant having knowledge of danger about him must use diligence and care in protecting himself from harm.

6. A servant cannot recover if his injury was the direct result of his own disobedience of orders.

7. When there is no evidence tending in any fairly appreciable degree to make out the plaintiff's case, the court on motion, should instruct the jury to find for the defendant, first giving plaintiff an opportunity to suffer a nonsuit if he desires to do so.

8. A case in which these principles are applied.

Error to circuit court, Mercer county.

Trespass on the case by M. S. Knight against John Cooper & Co. to recover for personal injuries. From a judgment on a verdict for plaintiff, defendants bring error. Reversed.

Johnston & Hale and Henritze & Keller, for plaintiffs in error.[36 W.Va. 233]

Okey Johnson, S.W. Williams, and A. C. Davidson, for defendant in error.

Page 1000

hOLT, J.

On the 28th June, 1889, M. S. Knight was working as a miner in the coal mine of defendants, John Cooper & Co., in Mercer county, when he was hurt by a fall of slate. For this he brought suit--trespass on the case--against John Cooper & Co., in the circuit court of Mercer county, charging the injury as the result of their negligence. The issue was made up by the plea of "not guilty," which was tried by a jury on July 1, 1890. The jury brought in a verdict for plaintiff, assessing his damages at $1,625. This the court set aside, awarding a new trial. The issue was again tried by another jury on the 18th March, 1891...

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