Davis's Adm'r v. Coal

• Decision Date: 13 December 1890
• Citation: 34 W.Va. 500
• Court: West Virginia Supreme Court
• Parties: Davis's Adm'r v. Nuttallsduro Coal & Coke Co.* (Holt, Judge, absent.)

34 W.Va. 500

Davis's Adm'r

v. Nuttallsduro Coal & Coke Co.^* (Holt, Judge, absent.)

Supreme Court of Appeals of West Virginia.

Submitted June 21, 1890.

Decided December 13, 1890.

1. Master and Servant Contributory Negligence.

Where a servant wilfully encounters dangers which have been pointed out to him, and does not avail himself of the rules and regulations which the master has provided to avoid and avert such danger, the master is not responsible for an injury occasioned thereby.

2. Master and Servant Contributory Negligence.

When a servant enters the employment of a master, he assumes all the ordinary risks incident to the employment, whether the employment be dangerous or otherwise.

St. Clair $ Gaines and L. G. Gaines for plaintiff in error cited:

27 W. Va 285 et seq.; 1 Laws. Ri. Rem. & Pr. § 311, 313; 31 W Va. 143, P't 6, Syll; 11 W. Va. 14 et seq.; 5 Ohio St. 541; 21 W. Va. 712; Code (1887) Appendix 979 s. 11; 2 W. Va. 104; 6 W. Va. 258; 14 W. Va. 100; 18 W Va. 1; Id. 766.

L. D. Isbell, C. W. Billon and T. L. Miehie for defendant in error cited:

16 W. Va. 308; 31 W. Va. 494; 28 W. Va. 732; 31 W. Va. 121; 26 W Va 117; 21 W Va. 709.

English, Judge:

On the 30th day of July, 1889, Robert II. Boone, sheriff of Payette county and as such administrator of the estate of John G. Davis, deceased, brought an action of trespass on the case in the Circuit Court of Fayette county against John Nuttall, L. AY. Nuttall, Jackson Taylor, and AY. II. Holland, partners in trade in the mining of coal and manufacturing of coke, under the firm name of Nuttallsburg Coal & Coke Company, claiming ten thousand dollars damages for an injury received by said John G. Davis, by slate falling upon him while engaged as a laborer in the coal mine of said company, which resulted in his death. The defendants demurred to the declaration, and to each count thereof, which demurrer was overruled, and thereupon the defendants pleaded not guilty, and issue was thereon joined, and on the 28th. of September, 1889, the cause was submitted to a jury, which, on a subsecpuent day, rendered a verdict for the plaintiff, assessing his damages at two thousand five hundred dollars, and on a subsequent day the defendants moved the Court to set aside the verdict of the jury, and grant them a new trial, which motion was overruled, to which ruling of the Court the defendants excepted, and the Court rendered a judgment on said verdict, and the defendants took a bill of exceptions to the ruling of the Court in giving certain instructions (Nos. 1, 2, 3, and 4) asked for by the plaintiff, and in refusing to set aside the said verdict and grant them a new trial, and applied for and obtained this writ of error.

It appears from the testimony in the cause, which is set forth in the bill of exceptions, that the plaintiff's intestate was engaged in the defendants' coal mines in said county as a coal-miner and extra coal-hauler, and that on the 25th day of August, 1888, a witness, William Derrico, heard Hi chard Seymore, the bank-boss at the said mine, ask said Davis to haul coal in said mine that day; that said Davis did not want to drive, but the bank-boss told him that, if he did not drive, he, Davis, would lose his "turn," which amounted to having no work at said mine, as a miner, that day; thereupon witness and said Davis started to work as coal-haulers for that day, Davis going to haul upon the entry in said mine, which was being driven by Charles Higgins, a miner employed by defendant; that said Davis had hauled coal on the day previous in the same entry in said mine; that after dinner, about one or two o'clock, witness was informed that slate had fallen upon Davis, and he went to him, and found him near the parting of room No. 1, which was being worked at the time by John Small, he being struck on the back by a piece of slate described by witness as a " slip," which was the thickest in the middle and tapered to a feather edge at both sides thereof. It was not a " horseback," or " kettleback," as miners understand, and was eight to ten feet in length, two and a half to three feet in width, and from eight to fourteen inches in the center. He assisted in taking said Davis home, and he died from said injury about ten o'clock that night. Said Davis's regular working place as a miner was in one of the rooms, not in the entry in which he was injured; that about two weeks prior to Davis's injury witness and other miners told Isaac Calloway, who was a driver at the time, not to drive on said entry, because it was dangerous. Calloway went for the mine-boss, and he came down, and told witness and others to go in their rooms. He, Seymore, sounded the slate, and said it was safe; that the roof in said entry was not in bad condition at the time Davis was killed. It had been, but the mine-boss had had the slate shot down, and the roof fixed, so as to make it safe. Witness had hauled coal on this entry for two weeks preceding, and on the day of the injury to Davis, but discovered no bad or dangerous slate in roof, and regarded the same as safe; that a miner can tell a " kettle-bottom," " horseback," or " slip," without any difficulty; that there was no draw slate in the entry where Davis was injured; that Miller and Godby put timbers in this entry, where Davis was injured, the next week after it occurred. It was the business of the mine-boss to look after loose slate, and he had a man by the name of Goosetree to assist him in his work. It was not the duty of drivers to look after the loose slate."

Isaac Calloway, also introduced by plaintiff, stated that the roof in said entry had been bad for about three weeks prior to Thursday preceding the accident; that he informed the bank-boss of this, and that he was afraid of the slate in said entry; that the miners said it was bad, and he did not want to drive there, and the bank-boss told him he could leave or drive where he put him; that the bank-boss had some of the slate shot down at this time, but that it was getting bad again on Thursday at the place where Davis was injured, and, after driving all day on Thursday in this entry, he refused to drive any more until the slate was taken down at this place; that, having learned that the slate was taken down on Thursday night, he returned on Saturday morning to drive in this entry, and would have done so, but that Davis preferred to drive there, rather than to drive in the hall-way at the foot of this entry, to the pit mouth, because there was more spragging to do there, and which he understood how to do better than Davis; that he had been driving on the entry where Davis was injured for four months prior to the time of the injury, and did not know of any opportunity he had to know the slate in the roof was dangerous; that it was not his business to inspect the roof, but it was the duty of the bank-boss; that loose slate was discovered by sounding it with a pick or hammer, and, when discovered, it was wedged or shot down; that some of the men had shot down some of the slate about three weeks before; that Samuel Goosetree was also cmployed to look after slate; that no props were used in this entry until after Davis was killed, but some were put up the week afterwards; that he had known his brother Marshall make live dollars a day in said mine; and that an average miner makes about three dollars a day.

Frank Shepherd, another witness for the plaintiff, stated that he was working for defendant when Davis was injured, assisting Charles lliggins, driving the entry in which Davis was injured at that time; had frequently gone up and down the entry to and from his work. That there had been some loose and bad slate in the entry in which Davis was injured, and, before the time of the injury, it had been shot down. He could tell it was bad by its working and cutting. That Davis did not give him any notice that there was loose slate in the entry that day, nor did he ask him to take any'down. The slate that fell was a horseback or kettle-bottom.

George Howard, a witness for plaintiff, stated that the slate was bad where Davis was injured, some had to be taken down every day or two; that bad slate could be made safe by posting it, or taking it down.

James Delaney, a witness for plaintiff, also stated that slate in said entry was in bad condition, and that, if the hall-way was dangerous, the boss could remedy it by putting timbers in it. On cross-examination, he stated he never was in any part of this entry but once, about August 1, 1888; that he passed along the entire length of said entry, and inspected the roof as he went along; that he found the identical spot where Davis was injured; that the roof at the time was in bad condition; that he stopped, and placed his hand over the loose slate in the roof; that there was no mark or special object to call his attention to that particular place, yet he knew it was the identical place where Davis was injured. He was in that part of the mine looking for a room to work in on said entry, and would have done work there, if he could have secured a room, and would have felt himself secure and safe while working, and he was always very particular where he worked. He saw but two or three places where slate was bad on said entry, and one of these places was where Davis was injured, and that no timber or props were in the entry at the time of the injury; that, after loose slate is shot down, it ought to be inspected every day.

James M. Callowey, another witness for the plaintiff, stated that he was hauling water in said entry, and emptying it immediately under the slate that injured plaintiff and, although he had a brighter lamp than the miners use, discovered no defect in the roof at that point, and regarded it perfectly safe; that it was the business of the bank-boss to examine the roof in the entry; that the bank-boss, by inspection, can tell when it is dangerous in the top of an entry. The place was not timbered, but was timbered shortly afterwards. That,...