Bare v. Crane Creek Coal & Coke Co

• Decision Date: 04 December 1906
• Citation: 61 W.Va. 28,55 S.E. 907
• Court: West Virginia Supreme Court
• Parties: BARE . v. CRANE CREEK COAL & COKE CO.

55 S.E. 907

61 W.Va. 28

BARE .

v.CRANE CREEK COAL & COKE CO.

Supreme Court of Appeals of West Virginia.

Dec. 4, 1906.

1. Master and Servant—Employment of Minor—Assumption op Risk.

A minor who enters the employment of another assumes the risks of all such apparent dangers as he is capable of comprehending and avoiding.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 538-543.]

2. Same—Incapacity op Minor.

It is actionable negligence for an employer to engage and place at a dangerous employment a minor, who, although instructed, lacks sufficient age and capacity to comprehend and avoid the dangers of the employment, if the employer has or should have notice of the minor's age and lack of capacity.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34. Master and Servant, §§ 141, 314-316.]

3. Same—Notice op Incapacity.

The employer of a minor, without other notice, is charged with notice oil such lack of capacity as is usual among minors of the same age, so far as the minor's age is or should be known to the employer.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 141, 314-316.]

4. Same—Burden of Proof.

The burden of proving that a minor employe had greater than the usual capacity of minors of the same age rests upon the employer; and the burden of proving that the minor had less than such usual capacity rests upon the minor, or the one seeking to recover damages on account of his death.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 896.]

5. Same—Negligence—Question for Jury.

A case proper for submission to a jury.

(Syllabus by the Court.)

Error to Circuit Court, Mercer County.

Action by G. L. Bare, administrator, against the Crane Creek Coal & Coke Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

G. J. Hoibrook and Harold A. Ritz, for plaintiff in error.

A. W. Reynolds, for defendant in error.

COX, J. This action was instituted in the circuit court of Mercer county by G. L. Bare, administrator of his son, Jonas E. Bare, deceased, against Crane Creek Coal & Coke Company, a corporation, to recover damages on account of the death of Jonas E. Bare. After the plaintiff's evidence had been introduced upon the trial, the defendant, without introducing evidence, moved the court to strike out the plaintiff's evidence and to direct a verdict for defendant, which motion was sustained. A verdict for defendant, and a judgment dismissing plaintiff's action, followed. The plaintiff brings the judgment here by writ of error for review.

The plaintiff offered evidence on the trial tending to prove that the boy, Jonas E. Bare, was employed by the defendant as "trapper" or "doorkeeper" in an entry of the mine of defendant; that the boy was killed while so engaged; that his duties were to open and shut the door across the entry where he was stationed, for the passage upon the track of mine cars propelled by an electric motor, and to signal for the passage of cars upon that track by manipulating an electric light or lights by means of a "cut-out switch, " thus indicating when the track was clear and when it was proper for cars to pass; that the light was located Inside the door; that there was an opening in the door, through which the signal light was visible from the entry in front of the door; that, shortly previous to the death of the boy, a train of 16 cars was passing into the mine along the main entry leading to the door where the boy was stationed; that before reaching the door the brakeman on the train whistled for signals, and saw the signal light indicating that the track was clear and that it was proper for cars to proceed; that the brakeman did not see that the door was closed; that the brakeman then signaled the motorman; that eight of the front cars were cut off, and caused to run on the main straight siding leading to the door where the boy was stationed; that the cars struck the door, knocking it down and wrecking the cars, or a number of them; that upon an examination of the wreck the boy was found beneath it under the cars, about 25 or 30 feet from the door, with his head injured and his life extinct; that about 15 or 20 minutes before the wreck a tracklayer, with another person, passed out through the door; that the tracklayer then saw the boy lying on his back between the rails of the track; that the person with the tracklayer said to the boy, "Don't lay there and let that motor run over you and kill you"; that the boy laughed, and said "he wasn't going to sleep"; that, after the tracklayer and the person with him passed out, the boy shut the door with his foot; that the signal lights were not on when these persons passed out of the mine; that the boy was killed some time after 3 o'clock in the afternoon of February 23, 1904; that the boy had been on duty about seven hours that day; that the boy was past 12 and under 13 years of age when he was killed; that he was "tolerably small of his age"; that at the time the boy was employed his father told the one employing him that the boy was in his fourteenth year; that the father afterwards ascertained that the boy was in his thirteenth year. The evidence does not show what previous experience the boy had in this employment. His father testified that he saw the boy while he was working in the mine, and saw the place where the boy was working, before he (the father) "got crippled, " but he does not say when he was crip-pled. As to the capacity of the boy, him father says: "He was just a common child; just like a common child." The evidence does not tend to show whether the boy was instructed in the duties or dangers of his employment or not. There are other features of the evidence unnecessary to detail.

The ground of this action is negligence. The burden is on the plaintiff to prove that the negligence of the defendant was the proximate cause of the injury resulting in the death of the boy. Butcher v. W. Va. & P. R. R. Co., 37 W. Va. 180, 16 S. E. 457, 18 L. R. A. 519. Negligence implies breach of duty, either of omission or commission. The question for our determination is: If the jury had found a verdict for the plaintiff on this evidence, would it have been the duty of the court to set the verdict aside; or, in other words, was the evidence sufficient to support a verdict for the plaintiff? Dye v. Corbin, 59 W. Va. —, 53 S. E. 147. The evidence in this ease tended to show that the boy was under 13 years of age when he was killed. The duty of an employer in engaging and placing a minor at a dangerous employment is largely measured by the capacity of the...