Cave v. Blair Limestone Co.
| Decision Date | 22 September 1914 |
| Parties | CAVE v. BLAIR LIMESTONE CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Error will not be presumed, but must affirmatively appear by the record.
The granting of a continuance is largely a matter within the sound discretion of the trial court, and the refusal to grant it does not demand a reversal, unless it clearly appears that there has been an abuse of discretion prejudicial to the party complaining.
It is actionable negligence for the master to set his servant to repair a piece of machinery, with the operation of which the servant is ignorant, which is liable to be set in motion and to become dangerous while the servant is working on it without warning him of the extraordinary hazard.
Error to Circuit Court, Berkeley County.
Action by I. F. Cave against the Blair Limestone Company. Judgment for plaintiff, and defendant brings error. Affirmed.
H. H Emmert, of Martinsburg, for plaintiff in error.
Decatur H. Rodgers, Allen B. Noll, and R. H. Boyd, all of Martinsburg, for defendant in error.
In an action for personal injury, tried in the circuit court of Berkeley county, plaintiff recovered judgment for $2,715, and defendant brings error.
The first error assigned is that the court refused to require plaintiff, who defendant claims is a nonresident, to give security for costs. The record shows that on the 22d January, 1913, after the clerk, at the direction of the court, had started to call the witnesses for plaintiff and before he had announced himself ready for trial, defendant suggested his nonresidency and demanded security for costs. The motion was overruled and defendant excepted. But no bill of exceptions embodying the evidence, if any, on this point was taken, and it does not appear that the court erred. The judge may have had good reasons for his action. It may have been proven to his satisfaction that plaintiff was a resident, or that, by its long delay in demanding security, defendant had waived its right thereto. But it is useless to speculate as to the court's reasons; we simply say that error will not be presumed, but must affirmatively appear, and the record discloses none on this point.
The next assignment is that the court erred in refusing to grant defendant a continuance on account of the absence of one of its witnesses. This witness was its general manager, Ward McLanahan. From the affidavits, pro and con, respecting the motion for a continuance, it appears that Mr. McLanahan did not see the accident which caused the injury, and that defendant expected to prove by him that it occurred at the noon hour when the machinery was supposed to be idle. This fact was testified to by Moore Robinson, whose deposition had been taken in the state of Pennsylvania by defendant to be read on its behalf. Defendant did not offer the deposition, and plaintiff was permitted to introduce it as evidence in his own behalf. He testified to the same fact that defendant expected to prove by the absent witness. The matter of granting a continuance is largely within the discretion of the trial court, reviewable, however, by this court, and, unless it clearly appears that there has been an abuse of discretion, the court's action will not be disturbed. In view of the facts above stated, we do not see that there has been any abuse of discretion.
The third assignment is that the court erred in rendering judgment in favor of the plaintiff upon the demurrer to the evidence. Defendant offered no evidence, but relied upon its demurrer to plaintiff's evidence. Defendant was engaged in operating a stone quarry, crushing stone, and burning and shipping lime and stone. Plaintiff was employed as a general laborer about the quarry. His work was to oil cars and do such other general work about the quarry as might be required. The machinery used to hoist the stone from the quarry pit to the surface above was operated by electricity. The power was controlled and applied by means of levers and wires in a room about 40 feet above the hoisting machinery. Moore Robinson was the foreman of the gang working in the quarry where the accident occurred. One of the cogwheels on the shaft became loose. Moore Robinson called plaintiff to...
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