Blackwood Coal & Coke Co v. James

• Decision Date: 16 January 1908
• Citation: 60 S.E. 90,107 Va. 656
• Court: Virginia Supreme Court
• Parties: BLACKWOOD COAL & COKE CO. v. JAMES.

60 S.E. 90

107 Va. 656

BLACKWOOD COAL & COKE CO.

v.JAMES.

Supreme Court of Appeals of Virginia.

Jan. 16, 1908.

1. Master and Servant—Injury to Servant —Sufficiency of Declaration.

In an action against a mineowner for the death of plaintiff's decedent, who was killed while employed as a driver in a coal mine, a declaration held on demurrer to be sufficiently full and certain to be understood by defendant and the jury and to enable the court to say ifthe facts stated were proved whether plaintiff could recover.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 816-836.]

2. Evidence — Opinion Evidence — Disposition of Animal.

In an action for the death of plaintiff's decedent, who was employed as a driver in a mine, a question as to the general character and condition of the mule driven by decedent, whether it was wild, safe, or dangerous, or what its habits were, did not call for the witness' opinion, but for a statement of facts based upon his knowledge.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2149-2185.]

3. Exceptions, Bill of — Authority to Make.

Evidence is not a part of the record, unless made so by a proper bill of exception the making of which is a judicial act, and the trial judge, who must indicate his approval of the correctness of the evidence incorporated therein by authentication under his own hand, cannot delegate that act to the clerk, and hence a paper purporting to contain the evidence in a case, certified by the clerk to be a true transcript of the record, but containing nothing to identify its contents as the evidence adduced on the trial, and no indorsement or other earmark of the judge to indicate that he had seen it or approved it as a true transcript of the evidence, cannot be made a part of the record.

4. Appeal—Writ of Error—Questions Presented for Review—Necessity for Setting Forth Evidence.

Whether the trial court committed prejudicial error in calling a witness in a civil case of its own motion cannot be considered, where the evidence given by the witness is not before the court.

Error to Circuit Court, Wise County.

Death action by E. H. James, administrator of Guy James, against the Blackwood Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The following is the declaration:

"(1) That before and at the time of the grievances hereinafter complained of, to wit, on the ————day of ————, 1905, the said defendant company was the owner and operator of a certain coal mine in the county of Wise, state of Virginia, from which said mine the said defendant company was then and there taking, hauling, and shipping coal in large quantities; that in carrying on its said business at and in the said mines the said defendant company had constructed and driven various entries and cross-entries underground in said mines, and from said entries it had turned off, made, and driven various other underground excavations commonly called 'rooms' from which it mined and hauled coal; that upon the floor of these entries and rooms tracks were put down, whereon coal cars were run for the purpose of hauling out the coal as it was mined in the rooms to the tipples on the outside of the mines, which said cars were drawn by mules in charge of said defendant company's servants called 'drivers'; that said tracks along the entries were connected with tracks going into the 'rooms' by means of switches.

"(2) That on the ——— day of ———,

1905, the said defendant company employed and hired the said plaintiff's intestate, Guy James, then a boy and infant of tender years, to wit, of about 16 years of age, as a 'driver' in the said defendant company's said mine, and put him in charge of one of said defendant company's said mules, and assigned said intestate to the duty of hauling coal out of one of said 'rooms' as above mentioned, and to haul into said room empty cars from the tracks of the main entries and haul out loaded cars from the said room. And the said plaintiff says that it then and there became and was the duty of the said defendant company, owed by it to said plaintiff's said intestate as one of its servants, to use ordinary care in providing and maintaining, for the benefit' of plaintiff's said intestate and its other servants, a reasonably safe place wherein to work and perform the duties and services required of him, and to use like care in providing the said intestate with reasonably safe means, appliances, ways, and instrumentalities, wherewith to perform the services and discharge the duties for which he had been employed; and it also became and was the duty of the said defendant company to instruct said intestate as to his duties and the dangers ordinarily incident thereto and to place where he was assigned to work, and to the means, ways, appliances, and instrumentalities with which he might reasonably be expected to handle, have charge of, or come into contact with in the course of his said employment.

"(3) Nevertheless the said plaintiff says that the said defendant company did not use ordinary care in and as to the matters and things above set out, or any one or either of them, but, on the contrary, negligently and wrongfully wholly failed so to do in this, to wit: Said plaintiff says that the said 'rooms' were made too narrow for the size of the cars; that the said tracks at the point where they were switched off from the entries to enter the rooms were negligently, unskillfully, and dangerously constructed and put down so that the cars in passing over them at that point were made to careen and 'slue' around in an abrupt and dangerous manner, frequently causing 'wrecks'; and that at the said place where the cars entered the mouth or openings of said room the space between the cars and the ribs or side of said rooms were so narrow and so negligently and unskillfully constructed so that if, from any accident or cause, the plaintiff's intestate, in the performance of his duty assigned, should, by accident, be thrown and caught between it and the sides of the room, or otherwise in performing his duties be so caught or placed between the cars and the sides of the room, it was impossible for him to escape great injury or death, of all of which the said defendant company then and there had notice; that the mule given such intestate to drive was a dangerous and unruly animal, of which said defendant company also had notice; that said defendant...