Barnett v. Coal
| Decision Date | 06 November 1917 |
| Citation | 81 W.Va. 251 |
| Court | West Virginia Supreme Court |
| Parties | Barnett, Adm'r. v. Coal & Coke Railway Co. |
1. Master and Servant Injury to Servant Questions for Jury-
Negligence Contributory Negligence.
Where it is shown to be a custom among employes in the shops of a railroad company to push the cars by hand, from the transfer table through the various rooms of the machine shops to the places where they are to be unloaded or repaired, and the spaces between the side of a car and the door-ways are shown to be narrower at some door-ways than at others, and narrower at one side of the track in the same door-way than at the other, and one of such employes is crushed and killed in one of such narrow spaces while pushing at the side of a car being moved through one of the rooms, the questions, whether the railroad company was negligent in so constructing its door-ways and laying its tracks, and whether deceased was guilty of contributory negligence in attempting to pass through such narrow space, are mixed questions of law and fact to be submitted to the jury upon proper instructions by the court, (p. 258).
Employes in such.machine shops are not engaged in interstate commerce in pushing a carload of lumber about the shops to the place where it is to be unloaded, which was loaded at a point in this state and hauled to the shops, its point of destination, likewise in this state, although the lumber was intended for use in building and repairing cars thereafter to be used, in part, in carrying interstate traffic, (p. 256).
3. Workmen's Compensation Act Classification.
Section 52 of the Workmen's Compensation Act excepts employers, who are engaged in both intrastate and interstate commerce, and such of their employes as are engaged in both intrastate and interstate commerce and whose employment is wholly within this state, and constitutes them distinct and separate classes, and provides a different method whereby they may obtain the benefits of the act than is provided for employers and employes of the general class, (p. 256).
4. Master and Servant Workmen's Compensation Act Common
Law Defense.
Section 26 of the Workmen's Compensation Act does not operate to deny to an employer, engaged in both intrastate and inter- state commerce, his common law defenses in an action for negligence brought by one of its employes for an injury received while performing work pertaining distinctively to intrastate commerce, when his general employment was such as required him to perform services at times wholly intrastate and at other times in connection with interstate commerce, unless and until such employer and employe have filed with the workmen's compensation commissioner a writing, approved by him, accepting the provisions of the act. Until such writing is filed and approved and the basis thereby fixed for ascertaining the amount of premiums to be paid into the compensation fund, such employer can not be said to be in default in failing to pay the premiums, (p. 256).
5. Same-Action for Injury Evidence Similar Accident.
In an action for negligence, causing the death of an employe, evidence by the employer that no accident similar to the one which caused the death of deceased had previously occurred is generally admissible, (p. 261).
6. Evidence Fact or Conclusion.
It is not proper to permit a witness for defendant to state that, in his opinion, the act which caused the death of plaintiff's intestate was a foolish thing for him to do. (p. 262).
Error to Circuit Court, Braxton County.
Action by J. W. Barnett, administrator of Homer L. Keener, deceased, against the Coal & Coke Railway Company, Judgment for defendant upon a directed verdict, motion to set aside verdict and grant a new trial overruled, and plaintiff brings error.
Reversed and remanded for new trial.
Hall Bros., for plaintiff in error.
Price, Smith, Spilman & Clay, for defendant in error.
J. W. Barnett, administrator of Homer L. Keener, deceased, brought this action against the Coal & Coke Railway company to recover damages on account of the death of deceased, alleged to have been caused by its negligence. After all the evidence had been introduced the court, on motion of defendant, directed the jury to find a verdict for it, over the plaintiff's objection, and later overruled his motion to set aside the verdict and grant him a new trial, and entered judgment. The court's rulings on these motions constitute the principal errors assigned.
The action is brought under the state or common law, and it is admitted defendant had paid nothing into the workmen's compensation fund, provided by the Workmen's Compensation Act for the benefit of injured employes. Defendant is engaged in both intrastate and interstate commerce, about ninety or ninety-five per centum of its business being of the latter class, although its entire; line of railroad is within the State of West Virginia. It maintains machine shops for the building and repairing of cars at Cassaway, and deceased, at the time of his injury, and for about a month prior thereto, was employed in the shops. The shops consisted of a number of large rooms through the walls of which open spaces or doorways were made for the passage of cars. It was the custom for the employes to push the cars, that were to be repaired or unloaded as the case might be, from the transfer table to the places where they were to be repaired or unloaded, some of them pushing at the rear and others at the sides of the car. Deceased was crushed while pushing at the side of a car loaded with lumber, the space between the side of the car and the jamb of the door being too small for the passage of his body. There are a number of such doorways at the shops, and there is evidence tending to prove that, in some of them the tracks were laid closer to one side of the doorway than to the other; that some of them were wide enough for the body of a man, pushing at the side of a car, to pass without injury, and others were not. This condition constituted the negligence of which plaintiff complains.
Whether it was negligence, under all the facts and circumstances of the case, is a mixed question of law and fact, which should have been submitted to. the jury upon proper instructions by the court respecting defendant's legal duty to its employes. If defendant had constructed all of its doorways, and had laid its tracks leading through them, so that all the spaces would have been obviously too narrow to allow a man to pass through safely at the side of a car, we could perhaps then say, as matter of law, such construction would not have been negligent; or, if it had made the doors wide enough, and had laid its tracks so as to leave a space on either side of all the doors wide enough for a man's body to pass safely, it would not have been negligent. But, to make the openings and lay the tracks so as to make some of them safe and others dangerous, but not obviously so, would seem to present a situation which would naturally invite an employe into an unnecessary danger. It at least presents a question for the jury. It was defendant's duty to use reasonable care to provide for its employes a reasonably safe place in which to work. There does not appear to have been any necessity for constructing the doors and laying the tracks in the manner shown in the present case, and, therefore, as was said by Justice Day, in Choctaw &c. R. Co. v. McDade, 191 U. S. 64, there was no reason for subjecting deceased to dangers which were wholly unnecessary to the proper operation of defendant's business. See also Kelleher v. Milwaukee dc. R. R. Co., 80 Wis.' 584, where the death of a switchman was caused by the proximity of a shed to the tracks, which rendered the performance of his duties unnecessarily dangerous; and Georgia Pacific Ry. Co. v. Davis, 92 Ala. 300, where a brakeman was injured by a rock which was suffered to project too near to the track. And Hoffmeir v. Kansas City-Leavenworth R. Co., 68 Kan. 831, where the conductor of an electric street railway was injured by one of the poles of defendant while he was on the footboard of the car collecting fares. In that case it appears the poles had been placed, unnecessarily, at irregular distances from the track..1 Sher. & Redf. on Negligence, (6th ed.), Sec. 201. A case directly in point is Ferrens v. Old Colony R. R. Co., 143 Mass. 197. There defendant owned a building which stood in its yards and was used as a blacksmith shop. Opposite the door there was a track which, from the door to the corner of the building, a distance of about twenty-two feet, approached the building and came so near to it at the corner that there was not room for a man to pass between the side of a car and the building. Defendant was employed as a blacksmith and was accustomed, when called upon, to assist in moving cars in the yard. He had been employed for many years and was familiar with the premises, but had not assisted in moving cars on that particular track. When he took hold of the car to assist in moving it, he saw the building and the space between the track and the building but apparently did not appreciate the fact that there was not room enough for him to pass. In view of those facts and circumstances, the court held it could not rule, as matter of law, that defendant was not guilty of negligence in suffering the building to remain so near the track, or that plaintiff was guilty of negligence in attempting to pass through the space while assisting in moving the car. Texas & Pac. Ry. Co. v. Swearingen, 196 U. S. 51, is also in point. There a switchman was injured while in the performance of his duty by striking aginst a scale box located in close proximity to a switch track. It was contended that he knew of the situation and had assumed the risk. But it was there held that the question of the railroad company's...
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