Knight v. Cooper
| Decision Date | 19 March 1892 |
| Citation | 14 S.E. 999,36 W.Va. 232 |
| Court | West Virginia Supreme Court |
| Parties | Knight v. Cooper et al. |
Injury to Employe—Assumption op Risk—Contributory Negligence—Knowledge op Danger —Directing Verdict.
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 tho 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.
(Syllabus by the Court.)
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 plain tiff, defendants bring error. Reversed.
Johnston & Hale and Henritze A Keller, for plaintiffs in error.
Okey Johnson, S. W. Williams, and A. C. Davidson, for defendant in error.
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 /ury 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, again resulting in a verdict for plaintiff; this time for $1.700 damages. Again the defendants, on various grounds, moved the court to set aside the verdict and grant them a new trial. This time the court refused, and gave judgment for the damages found, and the case is now here for review on writ of error allowed defendants.
Plaintiff's declaration need not be given. It is sufficient, and the demurrer thereto was properly overruled. The governing facts, undisputed, and the ruling principles of law, well settled, are asfollows: Plaintiff, at his own repeated solicitation, was given employment as a miner in that part of the work called "robbing the pillars, " well known to him and to all the miners to be the most dangerous kind of mining; the pressure and squeeze upon the pillars causingthe "working" and falling of slate from the roof, but at the same time the easiest, and especially the most profitable. " When a servant enters into the employment of a master he assumes all the ordinary risks incident to the employment, whether the employment be dangerous or otherwise." Berns v. Coal Co., 27 W. Va. 285; Davis v. Coke Co., 34 W. Va. 500, 12 S. E. Rep. 539; Tuttle v. Railroad Co., 122 D. S. 189, 7 Sup. Ct. Rep. 1160. Plaintiff himself was well aware of the danger. He saw the fallen and falling slate. Besides, the danger was pointed out to him and he was warned and cautioned specially, as well as required by the rule of the mine, which he knew, not to continue work, but to report it, and suspend work until it was propped and made safe by those who had that branch of the mining specially in charge. Plaintiff saw the fallen slate, and the "working" dripping slate overhead, ready at any moment also to fall. He reported it. The props were sent for at once, and were on their way, —came in 10 minutes; but he, while they were coming, again went to work under the dangerous spot in the roof, when some slate fell on him, injuring him seriously, breaking his arm in two places. "A laborer having knowledge of danger about him must use diligence and care in protecting himself from harm. " District of Columbia v. McElligott, 117 U. S. 621, 6 Sup. Ct. Rep. 884. "When a servant willfully encounters dangers which have been pointed out to him, and does not avail himself of the rules and regulations which the master has provided to avoid and avert such danger, the master is not responsible for an...
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