Diotiollavi v. United Pocahontas Coal Co.
| Decision Date | 03 February 1925 |
| Docket Number | 5323. |
| Citation | 128 S.E. 278,98 W.Va. 116 |
| Parties | DIOTIOLLAVI v. UNITED POCAHONTAS COAL CO. |
| Court | West Virginia Supreme Court |
Submitted January 27, 1925.
Rehearing Denied March 9, 1925.
Syllabus by the Court.
A case affirming points 1, 2, and 3 of the syllabus of Diotiollavi v. Coal Co., 95 W.Va. 692, 122 S.E. 161.
In an action for personal injuries based on negligence, the declaration must allege the duty, aver negligence in its performance, and specify the act working the injury, but need not detail all the evidential facts of negligence.
Error to Circuit Court, McDowell County.
Action by Orlando Diotiollavi against the United Pocahontas Coal Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Strother Sale, Curd & Tucker, of Welch, for plaintiff in error.
Sanders Crockett, Fox & Sanders, of Welch, for defendant in error.
From a judgment for $15,000 in favor of the plaintiff, rendered by the circuit court of McDowell county, the defendant brings error.
This is the second time this action has been here. The former decision is reported in 95 W.Va. 692, 122 S.E. 161. The opinion prepared by Judge Lively contains such a complete statement of the facts surrounding the injury to the plaintiff, as well as of the law applicable to the case, that any amplification thereof herein is unnecessary. The law of that decision remains the law of the case, unless the facts developed at the last trial are materially different in some respects from those at the former trial. The defendant asserts that there is such material difference between the facts proven in the two trials, and that the conclusions of law in the former decision are not applicable to the case now.
We held before that the plaintiff was an invitee of defendant at the place where he was injured. In the last trial the defendant attempted to change this status of the plaintiff by proof (a) That signs, upon which were printed in English the words "Private Property, No Trespassing," were attached to posts along the track at the place of the injury; (b) that notices were posted "thereabouts" forbidding trespassing; (c) that the foremen cautioned "these people" about "these children" being on the track; and (d) that one of the foremen asked one Frank Stock who talked "their language" to go to "these people and tell them to keep their children from playing around these tracks."
We infer that by "these people" the witness meant such of defendant's Italian laborers as understood English. The plaintiff's father was an Italian, but there is no evidence that he was ever so cautioned. On the contrary, he denies knowledge of any objection by defendant to the use of the track by children.
The trespass notices applied only to trespassers, not to employees of the company who were not trespassers. So long as plaintiff's father remained in the employment of defendant, and had no notice of the defendant's order or warning as to use of the track by children, and so long as children were still allowed by defendant to use the track the evidence warrants no change in the view that plaintiff was an invitee at the place of his injury, no matter how others may have been affected who actually knew of or received defendant's orders.
At the last trial the man who coupled the cars for defendant testified that he coupled to the trip the particular car that injured plaintiff. As this witness did not testify at the first trial, this evidence is singled out with confidence by defendant as another material variation from that of the former trial.
However, the fact remains in the case, unexplained, as at the former trial, that the car which injured plaintiff was running unattached and unattended by any representative of the defendant at the time of the injury. If this particular car had been the first car which had come down that track unattended, the defendant could contend with better grace that it had satisfied the demand for the reasonable care and diligence incumbent on it, when its servant properly coupled this car to the trip before the trip left the gathering place in the mine. But the undisputed, unexplained, evidence of one of the witnesses for plaintiff is that for many years she had observed single cars, at intervals of sometimes one week, sometimes one month, come down that track unaccompanied so far as she could observe. As her home was within a few feet of the track, we must conclude that, if these single cars had been attended, the attendants would not have been hidden from view, but would have been in a position where they could see the track ahead, and so have been visible to her. According to this evidence, therefore, some agency was occasionally permitting or causing these unattended cars to leave the mine entry, and at such frequent intervals that we must imply notice thereof to the defendant. Yet it offered no evidence of any attempt on its part to ascertain why or to prevent the escape of these unattached cars.
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