82 S.E. 180 (Va. 1914), Higgins v. Whitmore
Citation | 116 Va. 414,82 S.E. 180 |
Date | 11 June 1914 |
Docket Number | . |
Parties | Higgins v. Whitmore |
Court | Virginia Supreme Court |
Page 180
Error to a judgment of the Circuit Court of Norfolk County in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.
Affirmed.
SYLLABUS
The following instruction were given by the court:
PLAINTIFF'S INSTRUCTIONS.
1. "The court further instructs the jury that the burden of proving the defendant guilty of negligence rests upon the plaintiff, but if the defendant seeks to relieve himself of liability by reason of the plaintiff having been guilty of contributory negligence, the burden of proving such contributory negligence rests upon the defendant, which proof must be by a preponderance of the evidence, which may be proven by the plaintiff's own evidence or other facts and circumstances of the case."
2. "The court further instructs the jury that if they believe from the evidence that the plaintiff was an employee of the defendant and that the defendant was building a house near Glenwood Park, in Norfolk county. Virginia, and built the stage or scaffold around the back of the house out of unsound and decayed lumber without exercising ordinary care to discover said unsound and decayed condition, and that the said defendant directed the plaintiff in the course of his work to go upon the said scaffold and the plaintiff relying upon the skill and experience of the defendant, and using the ordinary care that an ordinarily prudent man would have used under the same circumstances, was by the breaking of the decayed and unsound lumber composing the said scaffold caused to fall and was injured that then the jury must find for the plaintiff, and in finding for the plaintiff they may take into consideration the time lost from work by the plaintiff, his incapacity to continue his vocation, until recovered from his injury, his mental and physical suffering, and may assess the damages as they deem proper and just, not to exceed the sum of $ 5,000.00."
5. "The court instructs the jury that it is a fundamental principle of law that the defendant owes to the plaintiff the duty to use ordinary care and diligence to provide a reasonably sound and safe place to work; and was equally bound to inspect and examine such place or material from time to time, and to use ordinary care and skill to discover and repair defects therein and not to use defective material for the construction of places upon which the plaintiff at the orders and instance of the said defendant should have to work. If, therefore, the jury believes from the evidence that the boards and planks out of which the scaffold and stage erected in the back part of the house in question, for the purpose of the plaintiff and other employees of the said defendant standing and working upon in the usual and customary course of their business, were rotten and decayed and the said defendant knew, or had been advised, or ought to have known by the exercise of ordinary care, that the planks and boards aforesaid were rotten and decayed, and that the plaintiff using such care and prudence as an ordinarily prudent man would have exercised under the same circumstances, at the special instance and request of the said defendant went upon the aforesaid scaffold, made as aforesaid, and was injured because of the breaking of the said decayed and rotten planks, that then the jury must find for the plaintiff."
DEFENDANT'S INSTRUCTIONS.
1. "The court instructs the jury that the law does not constitute the employer an insurer of the safety of his employee, but he is only required to use such care as ordinarily prudent persons use under the circumstances. On the other hand, the employee assumes all the ordinary risks incident to the service in which he is engaged, including all risks from causes which are either known to him, or which by the exercise of ordinary care he could have known, and he must exercise ordinary care and caution for his own safety while engaged in the employer's service, and if the jury believes from the evidence that the plaintiff at the time of the accident, either knew, or by the exercise of ordinary care might have known, that the scaffold was so unsafe that a reasonably prudent man would not use the same, and went upon the same, whereby the injury complained of resulted, he was guilty of contributory negligence in so doing, and cannot recover in this case even though the defendant may have been guilty of the negligence charged in the declaration."
2. "The court instructs the jury that negligence cannot be inferred from the mere happening of the accident, but the burden is upon the plaintiff to prove by a clear preponderance of the evidence that the defendant was negligent in the manner alleged in the declaration, and that the negligence charged in the declaration was the direct and proximate cause of the plaintiff's injury, and if the preponderance of the evidence does not establish these facts they should find for the defendant."
4. "The court instructs the jury that if they believe from the evidence that the plaintiff, in the absence of defendant, was the foreman of the work of the defendant, and had charge of the same in the defendant's absence, and as such had the direction of the work, then it became and was his duty to exercise ordinary care to see that the scaffold was reasonably safe and...
To continue reading
Request your trial