Bertha Zinc Co v. Martin's Adm'r.1

• Decision Date: 08 August 1895
• Citation: 93 Va. 791,22 S.E. 869
• Parties: BERTHA ZINC CO. v. MARTIN'S ADM'R.1
• Court: Virginia Supreme Court

22 S.E. 869

93 Va. 791

BERTHA ZINC CO.

v.MARTIN'S ADM'R.¹

Supreme Court of Appeals of Virginia.

Aug. 8, 1895.

Objections to Pleadings—Injury to Employe— Negligence of Master—Assumption of Risk—Reasonable Care.

1. An objection that there is a variance between the evidence and the allegations should be made at the trial, so that the opposite party may be given the opportunity to amend, under Code 1887, § 3384.

2. It is not negligence per se in an employe to warm his hands in cold weather at a fire where dynamite is being thawed, where there is evidence that the fire was built for the purpose of allowing the employes to warm themselves, as well as thawing dynamite, and that the master knew that his servants were so using the fire.

3. In entering an employment, the servant assumes such risks as are ordinarily incident to the employment, from causes open and obvious to him, the dangerous character of which he had an opportunity to ascertain; and he must exercise reasonable care and caution for his own safety while in such service.

4. The court instructed the jury: "It is the duty of the master to provide safe, sound, and suitable appliances and instrumentalities for the use of the servant, and to provide generally for his safety in the course of the employment, and to use proper diligence to avoid exposing the servant to extraordinary risk." Held erroneous,-in that it made such duties absolute, and not simply to use such care as reasonable and prudent men use under the circumstances.

5. A court is bound to give any instruction asked for by either party which correctly expounds the law upon any evidence before the jury.

6. In thawing dynamite, such reasonable care is required of the master as is commensurate with the danger which may reasonably be apprehended from such use, and such ordinary care as reasonable and prudent men under like circumstances use in thawing the same.

7. Ordinary care depends upon the circumstances of the particular case, and is such care as a person of ordinary prudence, under all the circumstances, would have exercised, and must be ascertained by the general usages of the business.

8. The master is not bound to use the newest and best appliances, but may furnish those of ordinary character and reasonably safe.

9. Allowing evidence to be introduced after both parties have announced that they have finished rests in the sound discretion of the court, and its action will not be held erroneous unless the error plainly appear.

10. Expert evidence should not be allowed after both sides have concluded their testimony.

Error to circuit court, Wythe county; Samuel W. Williams, Judge.

Action by Samuel Martin's administrator against the Bertha Zinc Company. Judgment for defendant, and plaintiff brings error. Reversed.

In the opinion, reference is made to a number of instructions offered by both sides and given by the court, which are as follows:

"Plaintiff's Instructions.

"No. 1 (as given). Duty of Master: The court instructs the jury that, before using a high dangerous explosive, it is the duty of the master to ascertain and make known to his servants the dangers to be reasonably apprehended from its use, and the proper method of manipulating it with reasonable safety; and the ignorance of the master as to the dangers to be apprehended from its use, or the proper methods of manipulating it, will furnish no excuse when the master, by the exercise of reasonable diligence, could have obtained such knowledge.

"No. 2 (as given). The court instructs the jury that if they believe from the evidence that it is dangerous to thaw frozen dynamite by an open fire, and that the method of thawing dynamite by an open fire is not reasonably safe, and that such dangers could be avoided or greatly reduced by the use of appliances and methods which were within easy reach of the master, and that the existence of such danger and the means of avoiding it or greatly reducing it were known to the master, or by the exercise of reasonable care and diligence on his part could have been known to him, that it was a duty that the master owed his servants to adopt such methods and use such appliances as were reasonably safe, and any other methods which were not reasonably safe will not excuse the master for injuries to the servant resulting therefrom.

"No. 3 (as given). The court instructs the jury that the servant assumes the ordinary risks incident to the service after the master has used proper care, diligence, and caution for the safety and protection of the servant, commensurate with the danger to be reasonably apprehended from the service; and if the master fails to use such care and caution, and an injury results therefrom, it is not a risk incident to the employment, and the master is liable therefor, unless the danger was open and apparent or the servant had actual knowledge thereof.

"No. 4 (as given). The court instructs the jury that while the master is not required to use the highest degree of care, or the latest, most-approved, and expensive appliances, yet, in using high dangerous explosives, the master owes a duty to his servant to employ experienced agents who know the dangers ordinarily incident to its use and the proper methods of manipulating it with reasonable safety, to have his servants whose duties bring them in contact therewith properly instructed and informed as to such dangers, and to adopt such reasonably safe methods and use such well-known and practical appliances to avoid or lessen accidents as are reasonably safe and well adapted to promote safety and give protection to the servant.

"No. 5 (as given). The court instructs the jury that if they shall believe from the evidence that on the day on which plaintiff's intestate, Samuel Martin, was injured, he, the said Samuel Martin, had been placed by the defendant company to work at a place of safety, and that said Samuel Martin (withthe knowledge and In the presence of the agent of the defendant company who was in authority over said Samuel Martin) left his said place, and went a short distance to a fire, and was there injured by the negligence of the defendant company; and if the jury shall further believe from the evidence that the said Samuel Martin, in leaving his said place of work and in going to said fire, had reasonable and proper cause for so doing, and which cause was sanctioned by the defendant company—then the said Samuel Martin, in so doing, was not thereby guilty of such contributory negligence as to bar a recovery in this action."

"Defendant's Instructions Asked.

"And the defendant asked the court to give to the jury the seven instructions following, to wit:

"No. 1 (as given). The court instructs the jury that negligence cannot be assumed in this case against the defendant company, but the burden of proving negligence is on the part of the plaintiff, who alleges it

"No. 2 (refused). The court instructs the jury that the degree of caution, care, and diligence exacted by the law of the defendant company, in providing appliances, methods of work, and means of safety for the employes in thawing dynamite, was only ordinary and reasonable care, caution, and prudence in providing and adopting reasonably safe appliances and methods in thawing said dynamite. Therefore, if the jury shall believe from the evidence that the method of thawing dynamite by the defendant company, at the time the injury occurred from the explosion complained of, was the method of thawing dynamite before an open fire, in the open air, and if the jury shall further believe from the evidence in this case that the method of thawing dynamite was reasonably safe, then the court instructs the jury that the defendant company was not negligent in using that mode of thawing dynamite, and the jury will find for the defendant

"No. 3 (refused). The court instructs the jury that while the master assumes the duty of providing reasonably for the safety of his employes, yet such employ^ has also the duty to take care of himself; and such employs, if he goes into a dangerous employment, assumes all of the dangers, perils, and accidents that are ordinarily incident to such dangerous employment. Therefore, if the jury believe from the evidence that the injury complained of in this case was produced by the purely accidental occurrence of the explosion of dynamite, and that the defendant company, in the performance of its duty, had exercised reasonable care, and that the Injury occurred-under such circumstances, with the use of such methods and appliances, as were reasonably safe and ordinarily used and adopted by other companies using similar dynamite, then there can be no recovery in this case for the plaintiff, and the jury must find for the defendant.

"No. 4 (refused). The court instructs the jury that where a servant has been assigned to do work at a particular place, wanders voluntarily away from his post of duty, prompted by curiosity, idleness, or otherwise, and is injured, he has no remedy against his employer. Therefore, if the jury shall believe from the evidence that Samuel Martin, the deceased, was employed by the defendant company to work at drilling earth, on top of a bank at its mines, and that his duty was, with a drill, pick, or shovel, to drill a hole in said earth, and that it was a safe position; and if the jury believe from the evidence that the said Samuel Martin voluntarily and without the direction of the said defendant company or its agents, left said position to which he was assigned, and exposed himself to danger by going to a fire at which dynamite was being thawed by other servants of the defendant company, and that said Samuel Martin was injured by an explosion of said dynamite at said fire, to which he went voluntarily and without the direction of the defendant company or its servants, —then the said Samuel Martin cannot recover for an injury thus sustained.

"No. 5 (refused). The court instructs the jury that if they believe from the evidence that Samuel Martin...