Daniel v. Big Sandy Coal & Coke Co.

• Decision Date: 20 December 1910
• Citation: 69 S.E. 993,68 W.Va. 490
• Parties: DANIEL v. BIG SANDY COAL & COKE CO.
• Court: West Virginia Supreme Court

69 S.E. 993

68 W.Va. 490

DANIEL v. BIG SANDY COAL & COKE CO.

Supreme Court of Appeals of West Virginia.

December 20, 1910

Submitted June 2, 1910.

Rehearing Denied Jan. 11, 1911.

Syllabus by the Court.

The principles of Norman v. Virginia-Pocahontas Coal Co., 69 S.E. 857, are affirmed and applied.

Error to Circuit Court, McDowell County.

Action by W. H. Daniel, administrator, against the Big Sandy Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Anderson, Strother & Hughes and Stokes & Sale, for plaintiff in error.

Sanders & Crockett, Littlepage, Cato & Bledsoe, and Ritz & Ritz, for defendant in error.

ROBINSON, P.

This action is one for damages arising from the death of a boy under the age of fourteen years caused by his unlawful employment in a coal mine. The principles applied in the cases of Norman v. Virginia-Pocahontas Coal Co., 69 S.E. 857, and Burke v. Big Sandy Coal & Coke Co., 69 S.E. 992, decided this term, control decision herein.

The first count of the declaration sufficiently stated a case. The matters introduced in evidence were provable under it. Therefore, the overruling of the demurrer to the declaration need not be considered in any other particular.

It may be said that the refusal of instruction No. 5 is not covered by our decisions in the two cases mentioned above. Be that as it may, the instruction was properly refused. It virtually premised that the jury might consider the mere consent of the parent to the unlawful employment as the proximate cause of the death. The evidence in the case does not warrant any such premise. The evidence shows plainly that the violation of the statute was the proximate cause of the boy's death. There are other reasons sustaining the refusal of the instruction which need not be discussed.

All that we said in the opinion in the Burke case relative to refused instructions on the subject of contributory negligence applies here. The evidence did not warrant the submission of that subject to the jury.

A thorough consideration of the record brings to view no error prejudicial to defendant. The judgment in favor of plaintiff will be affirmed.