Black's Adm'r v. Va. Portland Cement Co

• Decision Date: 21 September 1905
• Court: Virginia Supreme Court
• Parties: BLACK'S ADM'R. v. VIRGINIA PORTLAND CEMENT CO.

104 Va. 450

51 S.E. 831

BLACK'S ADM'R.

v.VIRGINIA PORTLAND CEMENT CO.

Supreme Court of Appeals of Virginia.

Sept. 21, 1905.

1. Master and Servant—Injuries to Servant—Assumed Risk.

Though a servant, on entering an employment, agrees by implication to assume the ordinary risks incident to the service, he does not assume any risk which may be obviated by the exercise of reasonable care on the part of the master.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 538, 547, 550.]

2. Same—Declaration—Sufficiency.

A declaration in an action for death of a servant by the fall of rock in a stone quarry in which he was employéd, alleging that the rock was in a position from which it was liable to fall, that defendant knew such fact and negligently permitted it so to remain, and that deceased, ignorant of the situation, remained at work in the quarry in due course of his employment, and while so engaged received his fatal injury, was not demurrable on the ground that the place where plaintiff was employéd was constantly changing, and was not a place furnished by the master, but prepared in part by the work of the servants, the dangers of which they assumed.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 547, 557.]

Appeal from Circuit Court, Augusta County.

Action by W. Arthur Wilson, administrator of George H. Black, deceased, against the Virginia Portland Cement Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

H. H. Wayt, Carter Braxton, and Curry & Glenn, for appellant.

Patrick & Gordon, for appellee.

KEITH, P. This is an action of trespass on the case, in which the administrator of George H. Black, deceased, sues the Virginia Portland Cement Company for injuries resulting in the death of his intestate.

The declaration shows that George H. Black was, when injured, in the employment of the Portland Company, engaged in getting out rocks from its quarry, and, after stating in general terms the obligation of the company to its servants, proceeds as follows: "It was particularly the duty of the said defendant company to keep and maintain the walls and sides of its said quarry, which walls and sides were of great height and very abrupt, clear of loose rock, or of such rock and stones as were liable to fall down and injure or kill its servants while at work in said quarry. And said plaintiff says that the said defendant disregarded its duty in this behalf, and carelessly and negligently failed to keep its said quarry in a reasonably safe condition, and left rocks or stones in the walls or sides of said quarry loose and in such a condition that they were liable to fall from their places on said defendant's servants while they were at work in the said quarry for said defendant for hire; and said defendant carelessly and negligently left a certain rock or large stone in such condition in the wall or side of its quarry that it was liable at any time to fall out of its place and down upon the servants of the said defendant while they were at work in the said quarry for hire, and to injure and kill them, and of all of which the said defendant had notice, and especially had notice of the dangerous condition of the said rock or large stone, and the dangerous condition of the said quarry, and the danger from the said rock or stone was unknown to the said plainti...