Berns v. Gaston Gas Coal Co.

• Decision Date: 05 December 1885
• Citation: 27 W.Va. 285
• Parties: Berns v. Gaston Gas Coal Co.
• Court: West Virginia Supreme Court

27 W.Va. 285

Berns

v.Gaston Gas Coal Co.

Supreme Court of Appeals of West Virginia.

Submitted June 13, 1885.

Decided December 5, 1885.

1. A declaration by a servant against his master for injury caused by the explosion of fire-damp in a coal-mine need not with particularity state the acts of omission or commission, which constituted the negligence of the master: if it is specific enough to inform the master, of what he is called upon to answer, so that he will not be surprised at the trial, it is sufficient, (p. 288.)

2. If the facts stated in the declaration show, that the plaintiff was guilty of negligence, which immediately and directly contributed to produce the injury, the declaration is fatally defective; but contributory negligence need not be negatived in a declaration, (p. 290.)

8. When a servant enters into the employment of a master, he assumes all the ordinary risks incident to the employment, whether the employment is dangerous or otherwise, (p. 300.)

4. The master must provide for the safety of his servant, as far as ! can reasonably be expected under the circumstances; but he is not obliged to take, more care of his servant, than he would be expected as a prudent man to take of himself, (p. 300.)

5. If a servant wilfully encounters dangers, which are known to him or are notorious, the master is not responsible for an injury occasioned thereby, (p. 300.)

6. The measure of care, which a master must take to avoid respon-sibility for injury to his servant, is that, which a person of ordinary prudence and caution would use, if his own interests were to be affected, and the whole risk were his own. (p. 300.)

7. Negligence and ordinary care are correlative terms. What con-stitutes ordinary care depends on the circumstances of each particular case. It is such care as a person of ordinary prudence would exercise under the circumstances, (p. 300.)

8. If the master has been guilty of negligence in failing to procure suitable appliances or machinery for carrying on his business, and injuries result therefrom to his servants; he must respond in damages, unless the servant well knowing the default of the master in this respect enters upon the employment or continues therein after such knowledge, in which case he assumes the^increased risk and can not hold the master for the consequences; but if the servant knows the defect or danger and has reasonable grounds to believe, that the master has cured or would immediately cure the same, he is not guilty of negligence by remaining in the service and may recover for injury caused by such negligence of the master, (p. 300.)

9. The master is not bound to furnish for his workmen the safest and best machinery nor to provide the best methods for the work, in which he is engaged, in order to save himself from responsibility for injnries to his servant. If the machinery and appliances, which he has, be in common use and are such as can with reasonable care be used without danger to the employe, it is all that can be required of the employer, (p. 300.)

10. The owner of a coal-mine is not required to resort to the most expensive methods for keeping his mine free from fin-damp in order to escape responsibility to his servant working in the mine for injury caused by an explosion of fire-damp. If he has reasonably safe methods in use for the proper ventilation of the mine and uses reasonable care to keep the mine properly ventilated and the fire-damp expelled therefrom, he will not be responsible. He is not held to extraordinary care. (p. 300.)

11. If the proprietors of a coal-mine have been negligent in permitting fire-damp to accumulate in their mine, which will not produce any injury until ignited, and it be ignited by a fellowservant, who goes into the dangerous part of the open mine with a lighted lamp instead of a safety-lamp contrary to the orders of the proprietor of the mine, and by such lighted lamp the, fire damp is ignited and exploded, by which a servant is injured, such explosion and injury having been directly and immediately caused by the act of the fellow-servant and not by the negligence of the master, the master under the circumstancestcan not be held responsible for such injury, (p. 305.)

A. F. Haymond for plaintiff in error.

J. W. Mason and, /. Bassel for defendant in error.

Johnson, President:

Charles Berns, an infant, by Charles Herns, his next friend, brought an action on the case in June, 1881, in the circuit court ot Marion county against James O. Watson, A. Brooks Fleming and James Boyer, partners doing business as the Gaston Gas Coal Company. There were three counts in the declaration, to which declaration and to each count thereof the defendants demurred, and the court sustained the demurrer as to the first count and overruled it as to the other two counts. We will not examine the first count. The second and third counts, which are substantially the same, alleged in substance that the defendants were owners of a certain coalmine in the county of Marion and were digging coal therefrom. The counts with considerable particularity described the mine and averred, that in said mine " large quantities of fire-damp, gases, fumes and vapors collected in and remained in said mine in said main drift or heading and in said lateral drifts or rooms, so that the safety of the lives and limbs of persons serving the deiendants in and about their said coal-mine and while in such service going into said main drift or heading and into said lateral drifts or rooms was dependent upon the care, with which the said mine and the said main drift or heading and the said lateral drifts or rooms were ventillated and made free from said fire-damp, gases, fumes and vapors, whereof the defendants had full knowledge, wdiereby it became the duty of the defendants for the safety of the persons so serving them to have the said coal-mine and the said main drift or heading and the said lateral drifts or rooms carefully ventillated and made free from said fire-damp, gases, fumes and vapors." The declaration alleges that on March 27, 1880, plaintiff was in the employment and service of the defendants in said mine driving mules, hauling coal out of said mine on a tram-road, and it became necessary for him as such servant to go into the main drift or heading and into the lateral drifts or rooms; that it was the duty of the defendants to have said mine, main drift or heading and lateral drifts or rooms well ventilated and free from said fire-damp, gases, fumes and vapors; that while he was thus engaged in the service of the defendants on March 27, 1880, by reason ot the carelessness and negligence of the defendants in permitting the said firedamp, &c, to be and remain in said mine, the said fire-damy, &c, exploded with great power and violence and ignited and burned with great heat, by means wmereof the plaintiff was greatly burned, wounded and bruised on both of his hands and on the hack part of his head and was otherwise injured and was crippled and lost the use of his hands, &c. He laid his damages at $5,000.00.

The demurrer being overruled the defendents, Watson and Fleming, who had been served with process pleaded not guilty. The judge of the circuit court of Marion county being so situated as to render it improper for him to preside at the trial, by consent of parties the case was removed to the circuit court of Taylor county for trial. On August 3, 1883, the trial was commenced and continued from day to day until August 9, when a verdict was rendered against the defendants for $2,000.00 damages. The defendants moved to set aside the verdict because contrary to the law and the evidence and because of after-discovered testimony. The second ground was supported by affidavits. The motion was overruled. Three bills of exceptions were taken to the rulings ot the court, the first and second to the admission of evidence, and the third, which certifies all the evidence, to the refusal to set aside the verdict and grant a new trial.

To the judgment the defendants, Watson and Fleming, obtained a writ of error with supersedeas.

The first error assigned is overruling the demurrer to the second and third counts of the declaration. While it is true, as the counsel for the plaintiffs in error insists, that the object of the declaration is to set forth the facts, which constitute the cause of action, so that they may be understood by the party who is to answer them, by the jury, who are to ascertain the truth of the allegations, and the court, who is to pronounce judgment, yet it is equally true, that in an action for negligence the declaration need not state with particularity the acts of omission or commission, which constituted the negligence or wrong. (Hawker v. M. R. Co., 15 W. Va. 628.) In that case the court said:

"There was no necessity for the declaration to specify the acts of omission or commission which constituted the negligence of the defendant. * * The degree of certainty required by the rules of pleading was met by the allegation, that the defendant negligently, carelessly and wrongfully caused a train of cars on its railroad to be propelled and driven upon the fat cattle of the plaintiff whereby three of them were killed, and seven others greatly bruised and injured. It is neither usual nor necessary to specify the acts or omissions of the defendant which constitute the negligence. This is matter of proof and need not be specified in the declaration. It was not specified in the declarations in the cases of Blaine x. The C f O. R, R. Co., 9 W. Va. 252, and Bayler v. The B. 0. R. R. Co., 9 W. Va. 27."

In B. cf 0. R. R. Co. v. Whittington's Adm'r, 30 Gratt. 805, cited by counsel for plaintiff in error it was held, that in an action for damages against a railroad company a count in the declaration, which after setting out, that the defendant was working a railroad in the county with engines and cars for carrying passengers and freight, alleged, that on a day named, u the defendants...