Clinchfield Coal Corp. v. Osborne's Adm'r

• Citation: 75 S.E. 750,114 Va. 13
• Parties: CLINCHFIELD COAL CORPORATION . v. OSBORNE'S ADM'R.
• Decision Date: 09 September 1912
• Court: Supreme Court of Virginia

75 S.E. 750

(114 Va. 13)

CLINCHFIELD COAL CORPORATION .

v.OSBORNE'S ADM'R.

Supreme Court of Appeals of Virginia.

Sept. 9, 1912.

1. Pleading (§§ 192, 317^*)—Demurrer—Bill of Particulars.

Where a declaration states a cause of action, the remedy of defendant desiring a more particular statement of the grounds of complaint is not by demurrer, but by motion for bill of particulars under Code 1904, § 3249.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 408-427, 954-902; Dec Dig. §§ 192, 317.*]

2. Master and Servant (§ 291*)—Injury to Servant—Contributory Negligence—Instructions.

Modifying defendant's instruction, in an action against a master for death of a servant, by changing it from one that verdict should be for defendant if deceased was negligent, and such negligence "contributed to" the injury, to one to so find if he was negligent, and such negligence was the "proximate cause of" the injury, was erroneous, as leaving out of view that the master is not liable where the servant's want of care was either wholly or partially the efficient cause of the injury, or if the accident was due to the mutual and concurrent negligence of both.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1133. 1134, 1130-1147; Dec. Dig. § 291.*]

3. Master and Servant (§ 296*)—Injury to Servant—Contributory Negligence—Instructions.

A master sued for injury to a servant is not entitled to an instruction that there can be no recovery if the servant was guilty of negligence which contributed "in the slightest degree" to the accident; this being calculated to mislead, and prevent recovery, though the serv ant's shortcoming was so trivial as to have been without appreciable effect.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]

4. Trial (§ 260*) — Instructions — Repetition.

An instruction is properly refused; the subject having been already sufficiently covered by instructions given.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]

5. Executors and Administrators (§ 29*)— Appointment;—Pendency of Action.

One haying sued as administrator, without in fact having been duly appointed such, and having acted in the interest of, and at the instance of, the only one interested in the estate, grant of letters of administration to him pending the action will relate back to its commencement for the purpose of preserving the right of action.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 177-182; Dec. Dig. § 29.*]

Error to Circuit Court, Wise County.

Action by J. B. Kiser, administrator of C. W. Osborne, deceased, against the Clinch-field Coal Corporation. Judgment for plaintiff. Defendant brings error. Reversed and remanded for new trial.

Bond & Bruce, E. M. & E. H. Fulton, and Phlegar, Powell, Price & Shelton, for plaintiff in error.

Vicars & Peery, for defendant in error.

HARRISON, J. At the time of the accident out of which this litigation grows, C. W. Osborne was working as the hired servant of the defendant coal corporation in one of its coal mines, and was killed, while in the discharge of his duties as a miner, by falling slate, stone, etc., from the roof of the mine. This suit was brought in the name of J. B. Kiser, administrator of C. W. Osborne, deceased, to recover of the defendant coal corporation damages for the death of his intestate, which is alleged to have been caused by the negligence of the defendant. The trial in the circuit court resulted in a verdict and judgment for the plaintiff, to which judgment the present writ of error was awarded.

There was a demurrer to the declaration, which we think was properly overruled. The declaration, read as a whole, states a good cause of action and sufficiently informs the defendant of the case it has to meet. If the defendant desired a more particular statement of the grounds of complaint, its remedy was not by demurrer, but by a motion for a bill of particulars under section 3249 of the Code. Interstate R. Co. v. Tyree, 110 Va. 38, 65 S. E. 500.

We are of opinion that the objection of the defendant to the court's modification of its instructions 4 and 7 is well taken, ana should have been sustained.

Instruction No. 4, as asked for, told the jury that if they believed the deceasedwas negligent, and that such negligence contributed to the injury, then they must find for the defendant. The court struck out the words "contributed to, " and substituted the words "proximate cause of, " making the instruction read, "and that such negligence was the proximate cause of the injury, " then they must find for the defendant. Instruction No. 4, as asked, was addressed to the defendant's claim that the plaintiff's intestate was guilty of contributory negligence in putting off, as he did, the shot which immediately preceded his death, and in going under the slate after the shot was fired, before its effect on the slate, which he had said was unsafe, was ascertained. The instruction correctly stated that the burden of proof was on the plaintiff to show that his intestate's death was due to some negligence of the defendant which was the proximate cause thereof, and further correctly stated that, if the jury believed the deceased was guilty of negligence and that such negligence contributed to the injury, they must find for the defendant.

Numerous decisions of this court show that it is the general, if not the universal, rule that, if the plaintiff in an action for negligent injuries has been guilty of contributory negligence, he cannot recover.

In Richmond Traction Co. v. Martin, 102 Va. 209, 213, 45 S. E. 886, 887, it is said: "The well-known rule in this class of cases is that a plaintiff seeking to recover damages for an injury caused by the negligence of the defendant must himself be free from negligence, and, if it appears that his negligence has contributed as an efficient cause to the injury of which he complains, the court will not undertake to balance the negligence of the respective parties for the purpose of determining which was most at fault. The law recognizes no gradations of fault in such case, and where both parties have been guilty of negligence, as a general rule, there can he no recovery."

As amended, the instruction left out of view the settled doctrine that the servant is not entitled to recover where his own want of care was either wholly or partially the efficient cause of the injury, and also ignored the established rule that the plaintiff cannot recover if the accident was due to the mutual and concurring negligence of the plaintiff and the defendant.

The amendment to instruction No. 7 was practically the same as that to No. 4. The instruction as offered told the jury that if the evidence showed that it was the duty of plaintiff's intestate to put props under the slate which fell, and also the duty of the company to put props under it, that both failed in their duty, and that failure of plaintiff's intestate contributed to the injury, they should find for the defendant. The court refused this, and amended the instruction by striking out ...