Cheeks v. Yirginia-Pocahontas Coal Co.
| Decision Date | 23 June 1914 |
| Citation | 74 W.Va. 553 |
| Parties | Cheeks v. Yirginia-Pocahontas Coal Co. |
| Court | West Virginia Supreme Court |
1. Appeal and Error Conflicting Evidence Questions for Jury.
It is the peculiar province of the jury to determine issues arising from conflicting oral testimony given in their presence. (p. 554).
2. Same Harmless Error Reception of Evidence.
The admission on a witness's cross-examination of a prior written statement made by him which, though put in on the theory of self contradiction, is consistent with what the witness stated in chief, can not be prejudicial to the party offering the witness even if improperly admitted, (p. 554).
3. Same Preservation of Grounds of Review Exceptions Instruc-
tions Completeness.
A party can not, by merely excepting to an instruction which completely and soundly propounds the law as to a particular phase of the case, make it the foundation for an assignment of error because it is incomplete in an incidental reference to another phase, when it does not pretend specifically to propound the law in that regard and is neither misleading nor confusing. He must ask an instruction supplying the incompleteness, (p. 556).
4. Master and Servant Injuries to Servant Safe Appliances.
The so-called mine foreman statute, Code 1913, ch. 15H, sec 24, does not absolve the mine owner or operator from the duty of exercising reasonable care to provide safe and suitable appliances, like a motor, for use in the mine. (p. 557).
Error to Circuit Court, McDowell County. Action by Carl Cheeks, by his next friend, against the Virginia-Pocahontas Coal Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
W. B. Kegley and Anderson. Strother & Hughes, for plaintiff in error.
Ross &' Kalile and Sanders & Crockett, for defendant in error.
Plaintiff, a young man seventeen years old, was injured in one of defendant's mines. Charging negligence on the part of defendant, he has recovered a judgment in the sum of ten thousand dollars. At the time of the injury he was acting as a brakeman on a motor which distributed cars in the mine. A defective step on the motor caused him to fall under the wheels. His leg was so injured that amputation was necessary.
In oral argument on this writ of error to the judgment, it was submitted on behalf of defendant that plaintiff had not been employed for the service; that a self-contradicting written statement of one of defendant's witnesses was improperly admitted on the cross-examination of that witness; and that the single instruction given on behalf of plaintiff was erroneous by reason of an incomplete reference therein to the measure of damages.
(1) There is evidence warranting the jury in finding that plaintiff was in the employment of defendant at the time of the injury. We deem it of no practical use to go into a discussion of the conflicting testimony on this score. As the matter was presented it was peculiarly the province of the jury to say whether or not plaintiff had been employed or was only a volunteer.
(2) The admission on Witness Connor's cross-examination of a prior written statement made by him, plainly did not prejudice defendant, The statement, though evidently put in on the theory of self contradiction, contains virtually only what the witness had stated on the subject in chief. Even if the jury improperly looked to it as substantive evidence, as defendant submits they may have done, it only confirmed what defendant had proved by the witness. The substance and practical import of the prior statement of the witness is not different from that of his evidence before the jury. No juror would be so discriminating as to raise a distinction between the meaning of the one and the meaning of the other. The testimony of the witness and his prior statement are consistent with each other.
(3) The instruction about which complaint is made is as follows: "The court instructs the jury that it is the duty of the master to use reasonable and ordinary care in providing reasonably safe and suitable appliances for the use of the employee in and about the work he was employed to do for the master, and to use reasonable and ordinary care in keeping the said appliances in reasonably safe condition, and that if they believe from the evidence that the master did not use ordinary care in providing reasonably safe and suitable appliances and did not use reasonable and ordinary care in keeping said appliances in reasonably safe condition, and that the plaintiff was injured by reason of the failure of the master to use such care in providing said appliances and failing to use such care in keeping such appliances in reasonably safe condition, and that the plaintiff did not contribute to his own injury, then they must find for the plaintiff and assess his damages at a sum commensurate with his injury, not exceeding twenty-five thousand dollars, if the jury further believe from the evidence that the plaintiff was employed by the defendant at the time he was injured as brakeman on its motor and was injured while in the discharge of his duties under such employment." It is clear that this instruction was meant only to propound the law as to the duty of the master toward the servant to use reasonable care in providing safe and suitable appliances to be used in...
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