Barna v. Gleason Coal & Coke Co

• Decision Date: 21 January 1919
• Court: West Virginia Supreme Court
• Parties: BARNA . v. GLEASON COAL & COKE CO.

98 S.E. 158

BARNA .

v.GLEASON COAL & COKE CO.

Supreme Court of Appeals of West Virginia.

Jan. 21, 1919.

(Syllabus by the Court.)

Error to Circuit Court, Mineral County.

Action by Ambros Barna against the Gieason Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Reversed, verdict set aside, and a new trial awarded.

Taylor Morrison, of Keyser, and Albert A. Daub, of Cumberland, Md., for plaintiff in error.

Arthur Arnold, of Piedmont, and W. C. Grimes, of Keyser, for defendant in error.

MILLER, P. Writ of error to the judgment of the circuit court of Mineral county in favor of the plaintiff for the sum of $7,-583.33 1/3. The action was one in case for alleged injuries sustained by plaintiff while employed as a miner in defendant's coal mine, due to the alleged negligence of de-fendant pleaded in the declaration. The only plea by defendant on which issue was joined was not guilty.

The only grounds of action, averred in the two counts, or paragraphs, of the declaration are the neglect of the general duty of defendant to use reasonable care and skill in providing plaintiff with a reasonably safe place to work, and to use all due care, caution and diligence to prevent danger, accident and injury to him while so employed, and to that end to cause all loose coal, slate and slack, stone and sand overhead in the rooms, air courses, drifts, passage ways and working places in said mine to be removed or carefully secured with sufficient props and stays to keep the coal, slate, slack, stone and earth hanging loosely about the roof of said mine from falling upon him, and negligently, carelessly and knowingly assigning and directing him to work in a place in said mine known to be dangerous, and whereby he sustained his injuries.

To reverse the judgment several points of error are relied on. The first relates to certain opinion evidence of Dr. Kemp, as to the permanency of plaintiff's injuries, and that he would never again be able to pursue his occupation of coal miner to the evidence of plaintiff that if he had been allowed to put down additional track as he desired, he would not have been injured, and to the striking out of certain of the evidence of defendant's witness Rinker, who after describing the condition of the mine previous to plaintiff's injuries, undertook to give it as his opinion that the mine where plaintiff was at work was in fine condition, the court ruling that all his evidence describing the condition of the mine should remain, but that his opinion evidence should be excluded. The alleged discrimination against the defendant in these rulings is emphasized by counsel for defendant as prejudicial.

The exception to Dr. Kemp's testimony is clearly without merit. Proper elements of damages in such cases are the nature of the injuries, and whether permanent or only temporary. Who is better qualified to speak on this subject than an attending physician and surgeon? That such evidence of a medical expert based on actual knowledge of the facts or facts proven by others is admissible is supported by the great weight of authority. Norfolk Ry. & Light Co. v. Spratley, 103 Va. 379. 49 S. E. 502; Perkins v. Monong. Tract. Co., 81 W. Va. 781, 95 S. E. 797; Holman v. Union St. Ry. Co., 114 Mich. 208, 72 N. W. 202; 2 Enc. Evidence, 848; Carthage Tpke. Co. v. Andrews, 102 Ind. 138, 1 N. E. 364, 52 Am. Rep. 653; Evansville & T. H. R. Co. v. Crist, 116 Ind. 446, 19 N. E. 310, 2 L. R. A. 450, 9 Am. St. Rep. 865; Fay v. Harlan, 128 Mass. 244, 35 Am. Rep. 372; Buel v. New York Cent. R. Co., 31 N. Y. 314, 88 Am. Dec. 271.

Respecting the evidence of the plaintiff, that if he had been permitted to lay the track he desired he would not have gotten hurt, while he was an. experienced coal miner, his opinion was hardly competent. Besides, the facts as to how and where he proposed to lay the track are very poorly developed, and how the laying thereof would have prevented his injury does not appear from the facts proven. If upon another trial the question becomes material, which we do not now see, he should be confined to stating all the facts and allow the jury to draw their own conclusions from them. On the same principle we see no error in the ruling of the court in respect to the opinion evidence of defendant's witness Rinker.

The next point urged is that after defendant had admitted on the record that it was in default to the Workmen's Compensation Fund at the time of plaintiffs injuries, the court over its objection permitted plaintiff to prove by the witness Topping of the Compensation Commissioner's office the same fact, and to introduce the record and also the correspondence with defendant relating to such default. It is admitted that this documentary evidence, admitted subject to the future ruling of the court, was not read to the jury, and that by defendant's instruction No. 7 given to the jury, all this evidence except the bare fact that the defendant had defaulted to the Workmen's Compensation Fund and was not a member thereof in good standing at the time plaintiff was injured, and also the fact that defendant had continued to deduct from plaintiff's wages his share of the premium, was stricken out and was not allowed to go to. the jury. Nevertheless it is insisted that all of the facts got to the jury's ears to the prejudice of defendant, and that the verdict ought to be set aside on this account. We cannot agree with counsel on this proposition. How this evidence not read to the jury could have prejudiced defendant does not sufficiently appear. Courts frequently in the course of trials are obliged to admit evidence subject to future rulings. When better advised the course is to modify the rulings thereon. We are cited to no authority supporting the point and we find none.

Next in order are the several points as to the giving and refusing of instructions. And first respecting plaintiff's instructions, twelve asked, ten only given. It is affirmed of them generally that they are not complete and are not predicated upon the pleadings and proofs in the case. Respecting Nos. 1, 2, and 3 it is said as of the rest of those given, that they too much assume negligence, that they are abstract. It is not denied that each states correctly the general law of negligence. The objection is that they are objectionable in not limiting their application to the acts of negligence alleged and as towhich there was at least some degree of proof. We do not find that it has ever been held reversible error to give an instruction general in terms if there is any evidence to which it may be applied. The rule invoked by defendant's counsel is applicable where the instruction is so indefinite as to be mis leading and there is no evidence in the case on which such instruction can be properly predicated. Bond v. Balto. & Ohio R. R. Co.; 96 S. E. 932; Suttle v. Hope Nat. Gas Co., 97 S. E. 429, 432; Lawrence v. Hyde, 77 W. Va. 639, 645, 88 S. E. 45; Blashfield's Instructions to Juries, chap. VIII. See, also, 7 Enc. Dig. Va. & W. Va. 720, and the numerous cases there digested. Although the evidence of negligence may not be sufficient to justify a verdict, yet if there be any evidence to which the instructions may apply, the trial court may submit them to the jury. Of course if there is no evidence at all to which they can go, they should be refused as misleading. Squilache v. Tidewater Coal & Coke Co., 64 W. Va. 337, 349 et seq., and cases cited at page 350, 62 S. E. 446. We have no hesitation in saying however that the practice ought in all cases to limit the instructions to the facts pleaded and claimed to have been proved. Stating the law in the abstract is calculated to mislead and bring about verdicts not warranted by allegata and probata.

Of instruction No. 5 it is pointed out not only that it is too general and abstract on the question of negligence but that by the language "and if you believe from the evidence that the defendant failed to do what, under the circumstances and facts in evidence the jury may believe was incumbent on its part to do, in order to keep the room or place in which plaintiff worked in a reasonably safe condition in that nature of business, and that the injury to the plaintiff was directly caused by such failure then the jury should find for the plaintiff, " the court left it to the jury to say what is negligence, a question for the court, and not alone whether there was negligence. This exact instruction was approved in Russell Creek Coal Co. v. Wells, 96 Va. 416, 31 S. E. 614. It limits the finding of the jury to the facts and circumstances in evidence. It defines negligence and then tells the jury in the language quoted what the law is if they find the facts proven show neglect of duty. If there is any degree of evidence supporting the theory of an instruction, it is not error to give it, although it turns out on the final test not sufficient to support the verdict. State v. Clifford, 59 W. Va. 1, 52 S. E. 981, syl. 6; Snedeker v. Rulong, 69 W. Va. 223, 226, 71 S. E. 180; Jones v. Riverdale Bridge Co., 70 W. Va. 374, 380, 73 S. E. 942.

Instructions Nos. 6 and 7 were predicated on the theory that there was evidence tending to show defendant had negligently allow ed coal to hang loose in the roof of the mine over the working place where plaintiff was employed, rendering the place unsafe, which fell on him and caused his injuries. On this theory and the very slight evidence thereof, the instruction may not be erroneous. No....