Thorn v. Addison Bros. & Smith, Inc.
| Decision Date | 30 November 1937 |
| Docket Number | 8585. |
| Citation | 194 S.E. 771,119 W.Va. 479 |
| Parties | THORN v. ADDISON BROS. & SMITH, Inc. |
| Court | West Virginia Supreme Court |
Submitted September 29, 1937.
Rehearing Denied Jan. 31, 1938.
Syllabus by the Court.
1. In a personal injury case, involving the death of an employee on the premises of the employer, an employer who is eligible to become a contributor to the Workmen's Compensation Fund and has not elected to do so, is, under Code, 23-2-8 deprived of the benefit of the defenses of assumption of risk, contributory negligence, and the negligence of a fellow servant. However, there can be no recovery unless negligence on the part of the defendant, his agent or employee proximately contributing to the injury, is shown by the evidence.
2. Where, in a personal injury case, the negligence relied upon for recovery is the alleged failure of the defendant to reasonably guard an opening in the floor of a warehouse created by the temporary removal of a trapdoor, and it appears from the evidence that an attempt was made by the defendant to guard said opening, the question of whether the guard so provided was reasonably sufficient should be submitted to the jury, if, upon the evidence presented reasonable minds might differ as to its solution.
3. Where a personal injury case is submitted to a jury, and in the course of the trial a view of the premises where the injury occurred is had, the jury, in arriving at its verdict, may, along with all the testimony introduced at the trial, and in explanation thereof, give consideration to that which it observed on the view.
Error to Circuit Court, Mercer County.
Action by E. M. Thorn, administrator of the estate of Lillie B. Thorn, deceased against Addison Brothers & Smith, Incorporated. To review a judgment in favor of the plaintiff, the defendant brings error.
Judgment affirmed.
John R. Pendleton, of Princeton, for plaintiff in error.
Ajax T. Smith and Hartley Sanders, both of Princeton, for defendant in error.
Addison Brothers & Smith, Inc., defendant below, plaintiff in error, complains of a judgment against it in the circuit court of Mercer county, rendered upon the verdict of a jury in favor of E. M. Thorn, administrator of the estate of Lillie B. Thorn, deceased. The action was based upon alleged negligence of the defendant causing her accidental death by a fall through an opening in the main floor of the warehouse of the defendant and into a basement thereof. The material facts may be stated as follows:
The defendant was engaged in the wholesale grocery business in the city of Princeton, and operated in a warehouse consisting of a basement and two floors above the same. The warehouse fronted on a Virginian Railway side track, and there was an entrance six feet wide opening by double doors into a hallway about ten feet wide, on the left of which were three offices extending along the side of the building, and on the right a small room known as a candy room, principally used for storing candy, chewing gum, etc. The door to the candy room and the door to the office across the hallway were nearly opposite; beginning at the candy room door, there was an opening in the floor, two feet wide and four feet long, which extended into the hallway about three feet, or within seven feet of the office door and within approximately three feet of the entrance doors. The opening was ordinarily covered by a trapdoor which was occasionally removed to provide access to the basement, used as a refrigerating room. This basement at certain times was affected by high water; shortly before the accident it had been so affected, and the trapdoor had been removed for the purpose of ventilating the basement.
The accident occurred on the afternoon of April 3, 1935. During the day, and up until immediately before the accident, the decedent had been working in one of the offices in company with Smith, the general manager, and had apparently completed her work for the day. Shortly before this, an employee of the company had been directed by the general manager to open the trapdoor and to "put some boxes and things around it to protect it." This order had been complied with, the trapdoor having been removed and the opening in the floor surrounded on two sides by two boxes of oranges or apples, one in front of the opening and the other on the side, two baskets of kale next to the candy room, behind the orange or apple boxes, and a bushel basket containing two one-gallon jars of vinegar placed at the corner on top of the boxes, and one or two bushels of turnips placed at some point. The other side of the opening was protected by one of the entrance doors which was swung around to connect one of the boxes, thereby preventing access to the opening from that side. The door to the candy room was closed and secured by an open lock resting in the hasp. Instruction to open the trapdoor was given in the presence of the decedent or in such close proximity as to lead to the inference that she heard or could have heard the same. At the time of the accident, one Stewart Six was in the hall of the warehouse, a few feet from the opening, engaged in sorting kale, and while so occupied, the decedent came out through the office door into the hall and asked Six "if there was any candy opened," to which he replied that he did not know and went on with his work. He states that she "was headed for the candy room," and immediately thereafter some exclamation attracted his attention, and as he glanced up, he saw the decedent as she was falling into the opening in the floor. He did not see what caused her to fall and there is no testimony in the case as to what occasioned the fall. The general manager and a traveling salesman were in the office at the time of the accident, and employees of the defendant were working on the upper floor of the building. Apparently she fell from the corner of the opening where the basket containing the vinegar was placed because the bottles of vinegar and the basket containing them fell into the basement with her. The testimony with relation to her inquiry whether or not there was any candy open was brought into the case because it appears that the manager had given instructions prohibiting employees, including the decedent, from taking candy from the candy room. There is conflict in the testimony with respect to the character of these instructions. The general manager states that his instructions against taking candy were absolute (and in this he is corroborated by his son), while one witness testified that he heard the manager say to the decedent "that he didn't want that candy broken into," and another that "he didn't want us breaking into anything." The evidence further is that the decedent's duties did not require her to go into the candy room for any purpose, and that it was not customary for her to do any work outside the office, although she may occasionally have gone to other places in the warehouse and was not prohibited from doing so.
The defendant, at the time of the accident, was not a subscriber to the Workmen's Compensation Fund, and is therefore deprived of the benefits of the common-law defenses of assumption of risk, contributory negligence, and the negligence of a fellow servant. Code, 23-2-8. However, before recovery may be had, actionable negligence on the...
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