Cox v. United States Coal

• Decision Date: 24 April 1917
• Court: West Virginia Supreme Court
• Parties: Cox v. United States Coal & Coke Co.

80 W.Va. 295

Cox

v.United States Coal & Coke Co.

Supreme Court of Appeals of West Virginia.

Submitted April 17, 1917.

Decided April 24, 1917.

1. Master and Servant Remedy of Injured Employe Workmen's

Compensation Act.

An employee, not himself at fault, who is injured while off duty, by the negligence of his employer oi of another employee in the course of his employment, is not entitled to be compensated out of the workmen's compensation fund, but has a right of action against his employer as at common law. (p. 300).

2. Same Injury to Employee Workmen's Compensation Act.

The term employee, as used in section 22 of the Workmen's Compensation Act, properly interpreted, does not include an employee who happens to be injured, while off duty, by the negligence of. another employee in the course of his employment. (p. 301)..

3. Negligence Pedestrians Duty of Coal Company.

A coal company, knowing that pedestrians frequently use a railway company's main line nearby its coal tipple located on a side track ten or twelve feet above the main line, whose custom is to pick the slate out of the coal as it is being loaded in the cars at the tipple and cast it in the direction of the railroad, is bound to use reasonable care to avoid injury to such pedestrians, (p. 301).

4. Same Pedestrians Care Required.

Persons so using a railroad, whether with or without permission of the railway company, do not thereby become trespassers as to such coal company so as to relieve it of the duty to use reasonable care to avoid injuring them. (p. 301).

Error to Circuit Court, McDowell County.

Action by Henry Cox against the United States Coal & Coke Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Anderson, Strother, Hughes &Curd, for plaintiff in error.

Joseph M. Crockett, A. G. Fox and Sanders & Crockett, for defendant in error.

Williams, Judge:

Plaintiff, Henry Cox, recovered a judgment for $15,000 against the defendant. United States Coal & Coke Company, a corporation, in an action for personal injury, and it has brought the case here on writ of error. Defendant's demurrer to the declaration was overruled. It then pleaded the general issue and tendered two special pleas, averring, in substance, that it was an employer within the meaning of the act of the legislature known as the Workmen's Compensation Act; that, at the time of his injury and for sometime prior thereto, plaintiff was one of its regular employees within the meaning of said act; and that defendant had, in all respects, complied with the provisions of said act and was entitled to all its benefits. Issues were joined and the case was tried by a jury, resulting in a verdict and judgment for plaintiff.

The facts and circumstances surrounding plaintiff's injury, as well as the cause thereof, are not disputed. Defendant was engaged in mining coal and manufacturing coke and employed several thousand men. It operated three mines on Tug River in McDowell county. About the last of January, 1916. plaintiff was employed as a day laborer to work in defendant's mine No. 11, and had worked four or five days next prior to the 5th of February, on which day he was injured. He did not go to work on that day. and his explanation for not doing so is, that he got up late and did not get his breakfast in time to get to the mine opening by seven o'clock and thought it was a rule of the coal company not to admit an employee into the mine, to work on the day shift, if he failed to be at the entrance at that hour. His boarding and lodging place was at defendant's mine No. 10, about a quarter of a mile below mine No. 11. On that day plaintiff and a companion by the name of Extine went up the river to mine No. 4, or Thorpe, which was about a mile from No. 11, to buy a cap. On the way up they stopped at mine No. 11, to inform the mine foreman, as plaintiff swears, why he had not gone to work that day. In going by mine No. 11, they followed a private road leading along the hillside and on the upper side of the tipple at No. 11. The evidence is conflicting as to whether they stopped at No. 11 in the morning or in the afternoon, but the way they went and the fact that they did stop are not disputed, and the time of day is not material. On their return from Thorpe to mine No. 10 they were walking along the main line of the Norfolk & Western Railway, and just as they reached a point opposite defendant's tipple at No. 11 plaintiff was struck on the head by a piece of "bone" thrown from a railroad car standing on defendant's siding under the tipple. The piece of bone weighed six or seven pounds and was thrown a distance of thirty-five or forty feet by George Hampton an employee engaged in picking slate and "bone" out of the coal as it was being loaded. Plaintiff's skull was crushed and he was knocked to the ground insensible by the blow. Defendant's switch or siding, at that point is elevated about ten or twelve feet above the level of the main line, and the distance between the two tracks, from center to center, is thirty-five feet and on the slope forty-five feet. George Hampton admits he threw the piece of bone that struck plaintiff, but swears he did not see him and did not know that he was hurt until Extine called to him to come down and help get him up. A public county road led down the river on the opposite side from the railroad, from Thorpe to No. 10, but the road was generally muddy in winter, and it is proven that pedestrians used the railroad tracks as a walkway instead of the county road, many persons traveling over it by tipple No. 11. Defendant knew that fact. Howard N. Eavenson, its chief engineer since 1902, admits he knew it. But plaintiff had not been employed long at the mine, and it is proven that this was the first time he so used the railroad track. The tipple stood partly on defendant's own land and partly on the railway company's right of way. Defendant's custom was, and had been for a number of years previous to the accident, to cast the slate and bone over the edge of the cars, between the switch and the main line, let it slide down the bank into the railroad ditch and, before it would accumulate in such quantity as to interfere with the tracks, to shovel it across the main line down the river bank. Plaintiff and Extine were walking along the track between the rails, not looking in the direction of the tipple, when plaintiff was struck. It is suggested that George Hampton's act in throwing the bone was malicious, but there is no evidence to warrant such an inference. His own testimony is not contradicted, and he says he did not see anyone at the time, and never saw or knew plaintiff before that occasion. Why he threw so heavy a piece of bone so far as he did is not explained. It may be that he attempted to throw it over the main line track to prevent it from rolling down the slope and possibly lodging on the track, and it is very probable that, if it had not struck plaintiff, it would have fallen to the ground beyond the tracks. Plaintiff was taken to the hospital and his wound dressed. He was able to go about in sixteen days, but his injury was severe and there is evidence tending to prove that it is permanent. He testified that he had not been able, since he was hurt, to perform much manual labor, that when he tried to do any work that required him to stoop over, he suffered from headaches, that whether he worked or not he suffered as much as four or five days a week from aches and pains in the head. The fracture of his skull was about three quarters of an inch in diameter and leaves the brain unprotected at that point except by the scalp. At the time of the trial, eight or nine months after the accident, plaintiff was still affected with partial paralysis and aphasia, resulting from his injury.

At the conclusion of the evidence the court gave the following instruction at the request of plaintiff: '' The court instructs the jury that, it appearing from the evidence in this case that the plaintiff was not in the service of the defendant company on the 5th day of February, 1916, the date of the alleged injury of which he complains, and at the time of the alleged injury, that the act known as the workmen's compensation act cannot be relied upon by the defendant as a defense to this action."

Defendant objected and excepted to the giving of this instruction, and asked for eight other instructions on its behalf all of which, except its No. 2, the court refused to give, and it again excepted. Its No. 5 is the antithesis of plaintiff's No. 1, and is to the effect that defendant was entitled to the protection of the workmen's compensation...