Cook v. Virginian Ry. Co.
| Decision Date | 21 October 1924 |
| Docket Number | 5082. |
| Citation | 125 S.E. 106,97 W.Va. 420 |
| Parties | COOK v. VIRGINIAN RY. CO. |
| Court | West Virginia Supreme Court |
Submitted October 14, 1924.
Syllabus by the Court.
A cold chisel provided by a railroad company for the use of its section hands in cutting in two steel rails for repairing the track is not within the class of equipment required by the second branches of sections 8069 and 8070 of Barnes' Federal Code (U. S. Comp. St. §§ 8657, 8658), but is a simple tool, and actions for personal injuries sustained in the use thereof are governed by the rules of the common law applicable thereto; and it is necessary to show negligence on the part of defendant.
The fact that such a common tool as a cold chisel is battered down in its use by blows from the hammer, and that a sliver or piece of steel has been thrown off and penetrated the body of plaintiff, does not constitute any evidence of negligence on the part of the master in respect thereto. When such a reasonably safe tool has been provided, an employer is not required to follow it up and by inspection and tests keep it in repair, when the workmen using it are as competent as the master to observe its condition and repair it or call it to the attention of the master.
Dangers incident to the use of such a simple tool as a cold chisel are of the class assumed by an employee in accepting employment.
The master is under no duty to warn or instruct a servant of mature years and with experience in the use of such a simple tool, when he is as competent to judge as the master how to make use of the instrument, and where no amount of instruction or warning could possibly aid him in avoiding the dangers incident to its use.
In such an action the burden is upon the plaintiff to show the negligence alleged, and where on the evidence it is just as plausible that the piece of steel doing the injury may have come from the steel rail being cut, or from the hammers employed, as from the cold chisel, the plaintiff has not made out a case of negligence against the master in providing the cold chisel alleged to have done him the injury.
An employee under age, unless emancipated by his father, cannot recover for loss of wages earned during his minority; his earnings during that time belong in law to his father.
Error to Circuit Court, Wyoming County.
Action by Lonnie Cook against the Virginian Railway Company. A verdict for plaintiff was set aside, and new trial awarded and plaintiff brings error. Affirmed.
J Albert Toler, of Mullins, for plaintiff in error.
Brown Jackson & Knight, of Charleston, Williams, Loyall & Tunstall and W. C. Plunkett, all of Norfolk, Va., M. P. Howard, of Pineville, and Martin & Wingfield, of Roanoke Va., for defendant in error.
In an action for personal injuries plaintiff obtained a verdict for $4,000.00. After a motion by defendant to set aside the verdict because contrary to the law and the evidence, plaintiff moved the court to allow him to remit the verdict to the sum of $1,500.00, which latter motion the court overruled; and being of opinion that plaintiff, on the case presented, was not entitled to any recovery, the court set aside the verdict and awarded the defendant a new trial. To this judgment the plaintiff obtained the present writ of error, assigning as one of the grounds of error the refusal to allow the remittitur; and the defendant has assigned numerous grounds of cross-error committed on the trial.
The declaration alleges that defendant is an interstate carrier, and that when injured plaintiff was engaged in repairing the track of defendant employed in interstate commerce.
Two breaches of defendant's alleged duty towards plaintiff are alleged and relied on for recovery. First, the duty to warn him of any and all dangers and hazards incident to the performance of his work as an employee, not obvious and which could not have been realized by him on account of his age and inexperience or otherwise, and to instruct him as to the best methods and manner of performing his work and avoiding dangers and hazards incident thereto: Second, the duty, neglected, to provide him with reasonably safe, strong and sufficient tools and appliances with which to do his work, and generally to use all due and reasonable care to prevent him from being injured while engaged in the performance of his work.
By way of specification of the breaches of these duties, it is averred that plaintiff was required by the section foreman to assist certain other employees in cutting in two a large steel rail to be used in repairing one of the tracks of defendant's main line, and that in the performance of this work it was necessary to make use of a very hard steel cutter, commonly called a cold chisel, the sharp edge of which was held upon and against the rail by one of the workmen while it was struck by others with heavy steel hammers; wherefore it was necessary that said chisel should be in good, safe, sound and solid condition, and particularly the end thereof that was to be struck with the hammers, so as to avoid injuring those using the same, by pieces flying therefrom when struck as aforesaid; that plaintiff was young and inexperienced, and the cold chisel so furnished and provided him for the performance of said work was battered, twisted and split on the end which was struck with the hammers, and was in an unsafe, unsound and dangerous condition, as was well known to defendant, and unknown to the plaintiff, who was young and inexperienced; by reason whereof, while so engaged, he was struck by a piece or fragment of steel which flew from said chisel, and which penetrated his right shoulder and lodged against the bone thereof, resulting in a serious and painful wound and injury, on account of which he was obliged to go to a hospital and there to remain under the care and treatment of doctors for a long time, and to suffer great physical and mental pain and anguish, and to pay out and expend large sums for doctor bills and medicinal attention, and has thereby sustained permanent injury, and was for a long time prevented from laboring at his usual and customary work, etc. Wherefore, by virtue of the Federal Employers' Liability Act of the Congress of the United States (U. S. Comp. St.§§ 8657-8665) an action has accrued to him to demand and have of the defendant damages to the amount of $5,000.00.
The only plea was not guilty, and issue was joined on that plea.
As was said in Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 501, 34 S.Ct. 635, 639 (58 L.Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475):
"This clause has two branches: the one covering the negligence of any of the officers, agents, or employees of the carrier, which has the effect of abolishing in this class of cases the common law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff; and the other relating to defects and insufficiencies in the cars, engines, appliances, etc."
And in the same connection it is said:
"But, plainly, with respect to the latter as well as the former ground of liability, it was the intention of Congress to base the action upon negligence only, and to exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence."
In our own cases of Hull v. Virginian R. Co., 78 W.Va. 25, 88 S.E. 1060, and Culp v. Virginian R. Co., 77 W.Va. 125, 87 S.E. 187, we have followed necessarily this construction of the statute.
In the case before us no defect in the equipment required by the second division of the statute is alleged or proven, unless the alleged defect in the cold chisel be properly classed thereunder. We do not think it is. It is not even included in the language "or other equipment." N.Y., N.H. & H. R. Co. v. Vizvari, 210 F. 118, 120, 126 C. C. A. 632, 634 (L. R. A. 1915C, 9) and cases cited. So that the defendant company violated no statutory provision for the safety of its employees in furnishing or permitting the use of the chisel which is alleged to have caused the injury to plaintiff.
So that we are obliged to decide the question presented here by the rules of the common law. And the defendant, before recovery can be had under the provisions of the statute, must be shown to have been derelict in some duty owed to plaintiff. Seaboard Air Line Ry. v. Horton, supra, and cases cited.
The question we have presented then is, was negligence shown in providing the particular chisel complained of by plaintiff? It was, as the evidence shows, a common, ordinary cold chisel, of the kind admittedly used in operations like the one described in the declaration and in the evidence. The claim is that the chisel was battered, burst, and split on the end which was struck by the hammers, and was in an unsafe, unsound and dangerous condition, as a result of which fragments flew therefrom, one of which struck plaintiff causing his injuries. The chisel was not produced in evidence, and there was no evidence of its condition except that which a tool of that kind would naturally acquire in the uses to which it was put. It is not pretended that this particular chisel was not of the kind and quality generally used. Just how split, whether mashed down by the blows or otherwise does...
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