Blankenship v. Ethel Coal Co.
| Decision Date | 14 March 1911 |
| Citation | 69 W.Va. 74 |
| Court | West Virginia Supreme Court |
| Parties | Blankenship v. Ethel Coal Co. |
1. Master and Servant Injury to Servant Pleading Assumption of Risk Contributory Negligence Question of Law and Fact.
Plaintiff, a boy under fourteen years of age, was employed as trapper in defendant's coal mine and while performing services therein for his employer was injured. Held:
I. In such case the declaration need not aver that the coal mine was not of the class excepted, by a proviso in the statute, from its operation. The proviso is not descriptive of the enactment and need not be negatived by the declaration, (p. 75).
II. Plaintiff has right of action if his unlawful employment is the proximate cause of his injury, (p. 77).
III. There is no such contractual relation between plaintiff and his employer as will admit of the doctrine of assumption of risk. (p. 77)
IV. Contributory negligence will defeat the action if plaintiff be shown to possess a greater measure of intelligence, knowledge and appreciation of danger, and care and ability to avoid it, than is usually possessed by boys under fourteen years of age, and the negligence with which he is charged be such as would not reasonably be expected of a boy of his information and capacity, (p. 77).
V. Negligence, in such a case, is necessarily a mixed question of law and fact and must be determined by the jury. (p. 77).
VI. Misrepresentations by the boy, or his friends, as to his age will not defeat recovery if no amidavit be furnished, (p. 79).
Error to Circuit Court, Logan County.
Action by Elmer Blankenship against the Ethel Coal Company. Judgment for plaintiff and defendant brings error.
Reversed, and new trial gram ted,.
Anderson, Stroiher & Hughes, for plaintiff in error.
C ha fin & Bland and F. C. Leftwich, for defendant in error.
Williams, President:
Plaintiff, a. boy under the age of fourteen years, was employed as a "trapper" in defendant's coal inline, and while at work in the mine was injured. He sued defendant for negligently causing his injury, and recovered a judgment in the circuit court of Logan county for $1,500. Defendant has brought the case here on writ of error.
It is insisted that the demurrer to the declaration should have been sustained. We think it was properly overruled. The declaration consists of four counts each of which avers the particular manner of plaintiff's injury, and that he was under the age of fourteen years at the time. The first count contains the further averment that plaintiff was "unlawfully, negligently and carelessly employed" to work as doorkeeper or trapper, and that while he Avas engaged in the performance of his duties he was commanded by defendant to assist the driver in coupling up the coal cars, and that in attempting to obey this command he was injured. The second count also avers the unlawful, negligent and careless employment of plaintiff to work in the mine as trapper, and in addition thereto, alleges that plaintiff undertook to assist the driver to couple up the cars, and in doing so was injured. The third count avers the neglect of defendant's duty, in that it did not instruct plaintiff in the performance of his work, and did not inform him of the dangers incident thereto. The fourth count avers that defendant was negligent in suffering one of its coal cars and the attachments thereto belonging to become unsafe and insufficient, and in consequence thereof plaintiff was injured.
Section 17, chapter 78, Acts 1907, makes it unlawful to employ boys under the age of fourteen years to work in any coal mine. Section 27 of the same chapter contains a provision which says: "The provisions of this act shall apply only to coal mines in which five or more persons are employed in a period of twTenty-four hours; but no mine employing less than ten men shall be required to employ a mine foreman." In view of this proviso it is urged that the declaration is bad, because it does not aver that plaintiff was not employed, in a coal mine of the class excepted from the provisions of the act. It is not necessary for us to decide, and, therefore, we do not decide whether the application of section 17 is limited by the proviso in section 27. But let it be admitted, for the purpose of determining the sufficiency of the declaration, that the application of section 17 is limited to mines employing five or more persons in twentyfour hours, still it does not follow that the declaration is bad because it does not aver that plaintiff was not employed in a coal mine of the class excluded from the operation of the act. If the enacting part of the statute is general and complete within itself, and the terms of the enactment do not incorporate any exceptions or provisos limiting its operation or application, so as to make them descriptive of the act itself, but there are provisos or exceptions which are contained in separate clauses, or sections of the act, which are distinct from the enacting part of the statute and they constitute no definitive part of the enactment, a declaration which avers the violation of such a statute as constituting such negligence as affords a right of action to a]3erson injured in consequence thereof, need not contain an averment negativing the exceptions or provisos. This rule of pleading has been frequently applied in determining the sufficiency of indictments based upon statutes containing exceptions and provisos, and we see no reason why it is not equally applicable in civil actions founded on violations of similar statutes. Commonwealth v. Hill, 5 Grat. 682; State v. Richards, 32 W. Va. 356; Stale v. Railroad Co., 50 W. Ya. 235. The declaration alleges that plaintiff was "unlawfully" employed to work in defendant's coal mine, and that he was under fourteen years of age. This averment is sufficient to show a violation of the statute. If the mine had been of the class excepted from the operation of the statute, such fact could have been set up as a defense, provided such fact would have constituted a valid defense, a point which we do not decide. Looking to the evidence, however, which we can properly do in considering the motion to set aside the verdict, we see that there were more than five persons employed to work in defendant's mine in twenty-four hours, at the time plaintiff was injured.
The defense made to plaintiff's action is, that he was fully and carefully instructed how to perform the work of a trapper, and that he fully understood and appreciated all the dangers connected with his employment, and had ability to avoid any accident, and, notwithstanding his capacity, knowledge and
ability he was guilty of negligence which was the proximate cause of his injury. The court below evidently tried the case upon the theory that the statute, section 17 of chapter 78 of the Acts of 1907, was made for the protection of all boys under the age of fourteen years, and that plaintiff's unlawful employment was the proximate cause of his injury; and that contributory negligence would not defeat plaintiff's action. But such is not the interpretation given to this statute, by a majority of this Court, in the case of Norman v. ...
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