Adm&x v. Haley.1

• Decision Date: 13 November 1890
• Citation: 29 W.Va. 98,11 S.E. 901
• Court: West Virginia Supreme Court
• Parties: Gerity's Adm'x. v. Haley.1

11 S.E. 901

29 W.Va. 98

Gerity's Adm'x.

v.Haley.¹

Supreme Court of Appeals of West Virginia.

Nov. 13, 1890.

Negligence—Demurrer to Evidence.

1. Where negligence is the ground of an action, it rests upon the plaintiff to trace the fault for his injury to the defendant, and for this purpose he must show the circumstances under which the injury occurred; and if from these circumstances so proven by the plaintiff it appears that the fault was mutual, or in other words, that contributory negligence is fairly imputable to him, he has by proving the circumstances disproved his right to recover, and on the plaintiff's evidence alone the jury should find for the defendant.

2. If the defendant demurred to the plaintiff's evidence, and the evidence showed that the defendant was, as a legal proposition, guilty of the negligence which caused the plaintiff's injury, but further, as a legal proposition, proved that the plaintiff was guilty of contributory negligence, the court should sustain the defendant's demurrer; or in such a case the court ought, on the motion of the defendant, to exclude from the jury all the plaintiff's evidence.

3. If the defendant demur to the plaintiff's evidence, and the evidence fails to show that the defendant was as a legal proposition guilty of negligence, but shows a case in which the negligence of the. defendant was properly a mixed question of law and fact, and the jury could not unreasonably infer from the evidence that the defendant was guilty of negligence, which caused the plaintiff's injury, but this evidence of the plaintiff is such that it would obviously require the jury if they should find there was any negligence in the case to find that, it was mutual, the proof of the negligence of the defendant being exactly the same facts and circumstances which necessarily establish the contributory negligence of the plaintiff, if they establish the negligence of the defendant, upon such a case, the court should sustain the defendant's demurrer to the plaintiff's evidence; and in such case, if asked by the defendant, the court should exclude all the plaintiff's evidence from the jury.

(Syllabus by the Court.)

This was an action on the case brought September 13, 1882, in the circuit court of Ohio county by Catharine Gerity, administratrix of Patrick Gerity, against James Haley, to recover damages for the wrongful act, neglect, and default of said Haley, whereby the plaintiff's intestate, Patrick Gerity, lost his life. There was a demurrer to the declaration which the court overruled. The defendant pleaded not guilty; and issue was joined on that plea. The plaintiff having introduced and submitted all ber evidence, the defendant moved the court to exclude it all. The court sustained the motion, the plaintiff excepted, and the court signed the bill of exceptions, in which all the plaintiff's evidence is set forth at length. On May 19, 1885, the jury found a verdict for the defendant; and the plaintiff moved the court to grant her a new trial, which motion, the court having taken time to consider, it overruled on the 16th day of November, 1885, to which the plaintiff excepted"; and thereupon it was considered by the court "that the plaintiff take nothing by her bill, but for her false clamor be in mercy, etc., and the defendant go thereof without day and recover against the plaintiff his costs by him about his defense in this behalf expended." To this judgment a writ of error was awarded by a judge of this court. The plaintiff's evidence set forth in the bill of exceptions shows that the case, as proven by it, is as follows: Beck & Adams were contractors with the city of Wheeling for laying certain water-pipes in the streets of said city; and the defendant, James Haley, had a subcontract with Beck & Adams for digging a ditch to receive this water-pipe, in which plaintiffs' intestate, who was one of the hands employed by the defendant to dig the ditch, was injured. The ditch in which the accident occurred was in Market street and the place where it occurred was opposite the market-house. There is a considerable difference in the soil in Market street, a portion being clay and a portion, as shown by this ditch, being largely sand and gravel with much less clay. Where the accident occurred, the top of the soil for some distance was clay, and under this layer of clay was a layer of gravel and sand. The pipe which they were laying in this ditch was 30 inches in diameter; and in laying it they had to shovel under the sides of the ditch, which made them more liable to fall in; and there the sides were propped, but nowhere else. The men were thus laying down the pipe eight or ten yards below where Gerity was at work, and below where the caving in took place, the sides being propped. A person going down the street, just' before the accident occurred, went upon the top of the bank of dirt, which had been thrown up all on one side, to look over into the ditch, which he regarded as dangerous, and that the men working in it were liable to be buried by a slide. He cannot say whether or not his additional weight caused the slide, which occurred just where he was, and while he was there. The slide was too sudden for him to give any alarm. He did not go in with the slide but went back. A few minutes after this caving in the bank caved in still further, this second caving in adjoining thefirst. One of the plaintiff's witnesses on the examination in chief said: "1 don't know what acquaintance Gerity had with that sort of work. 1 had known him working at that sort of work before. I don't know anything about that." On cross-examination the witness stated that he had been working at the ditch for five or six weeks, and it was being dug in the same manner all the time. Some dirt caved in on a young man just below where this accident occurred to Gerity. The young man was so hurt that he had to be carried home in a wagon. Gerity was at work in the ditch close to this young man when the accident occurred. This evidence about the other accident was objected to by the plaintiff as not proper to go to the jury or to be brought out on cross-examination; but the court allowed it to go to the jury. It was also proven that the ditch where the accident occurred was seven or eight feet deep, and seven or eight feet wide at the top, and five or six feet wide at the bottom. This was about the slope of the sides of the ditch all along Market street, wherever there was gravel and sand in the soil. It was further shown that on January 9, 1882, at about 8 o'clock a. m., Patrick Gerity, the plaintiff's intestate, was at work in this ditch opposite the market-house for the defendant, Haley, when he was hurt by the sliding down of the dirt piled upon one side of the ditch, and the caving in of the side of the ditch suddenly, for a distance of eight or ten yards. The dirt covered him and another laborer almost to his shoulders and so injured him internally that he died of the injury in a few hours. The deceased left a widow and six children under sixteen years of age. The plaintiff offered in evidence two deeds, dated October 20, 1882, whereby for $8,000 the defendant conveyed to a third person a certain lot in Wheeling, which this third person at once reconveyed to the wife of the defendant; and the plaintiff offered to prove that this was all the property that the defendant then had; but the court refused to permit this evidence or the deeds to go to the jury. This was all the plaintiff's evidence; and on motion of defendant's counsel it was all excluded from the jury.

Hubbard & Rheinstrom, for plaintiff in error.

H. M. Russell, for defendant in error.

Green, J., (after stating the facts as above.) This suit is brought under chapter 103, §§ 5, 6, of the Code, (Warth, Amend. Code, 634,) which provide that a suit may be brought by the personal representative of a deceased person, whose death has been caused by the wrongful act, neglect, or default of another, whenever the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof. In this case the court on motion of the defendant excluded all the plaintiff's evidence. This should never be done, except when, regarding the defendant as though he was a demurrant to the plaintiff's evidence, the court woujd find for the demurrant. Schwarzbach v. Protective Union, 25 W Va. 622; Dresser v. Transportation Co., 8 W. Va. 553. Just as a demurrer to evidence withdraws from the jury—the proper triers of facts—the consideration of the evidence, so does the exclusion of all the plaintiff's evidence on motion of the defendant; and therefore in either case the plaintiff is entitled to have his evidence most benignly interpreted by the substituted court. Miller v Insurance Co., 8 W, Va. 515. So construed the plaintiff's evidence proves her case to be as follows: The defendant employed the plaintiff's intestate as a laborer to aid in digging a ditch in the streets of Wheeling, in which to lay a pipe. The ditch was seven or eight feet deep, and the sides sloped so little that, when the nature of the soil was considered, there was danger of the sides caving in, and injuring the laborers employed in digging the ditch. There were no timbers or props put along the sides of the ditch to prevent it from caving in, and no one was placed on the banks of the ditch to give the laborers warning if there should be any indication at any time that the banks of the ditch were about to cave in; but the plaintiff's intestate, one of the laborers employed to dig the ditch, was as fully aware of the danger he incurred as was his employer. On January 9, 1885, suddenly and without any warning, the bank caved in and the debris covered Gerity, who was standing up at work in the ditch, almost to his neck, which so injured him that he died of the injury in a few hours. Can the plaintiff recover of the defendant on this...