Ewing v. Lanark Fuel Co.
| Decision Date | 11 June 1909 |
| Citation | 65 S.E. 200,65 W.Va. 726 |
| Parties | EWING v. LANARK FUEL CO. |
| Court | West Virginia Supreme Court |
Submitted September 8, 1908
Syllabus by the Court.
Negligence is generally a mixed question of law and fact; and, when the evidence is conflicting in relation to the existence of such facts as would show negligence if the facts were undisputed or when the facts admitted to be true, or clearly proven and not denied, are such that reasonable men might draw different conclusions from them, the question of negligence is for the jury. The same is also true in relation to contributory negligence, which, under the law of West Virginia, is a matter of defense.
It is the duty of the master to warn his servant of the dangers incidental to his employment, unless they are so obvious that it may be fairly assumed that the servant fully comprehended them. If the servant is an infant, this duty becomes more imperative.
Whether or not a master is liable to his infant servant for injury received by him in the course of his employment depends upon the mental capacity of the infant to comprehend and avoid the dangers incidental thereto, and upon the question whether or not he was fully informed in relation to such dangers, so as to charge him with having voluntarily assumed the risk of injury.
Between 7 and 21 years, the age of the infant is only an evidential fact bearing on the question of his mental capacity to comprehend and avoid danger.
An infant, 14 years of age or over, is presumed to possess sufficient mental capacity to comprehend and avoid danger and, if he relies on his want of such capacity, the burden of proving it is on him, but, if under the age of 14, he is presumed not to possess such capacity, and in an action by him for negligently causing his injury the burden of proving his capacity is on the defendant.
Whether or not an infant possessed sufficient mental capacity to comprehend and avoid the dangers incidental to his employment, and whether or not he was aware of his danger, and could have avoided it by the use of such care as might reasonably be expected in one of his age, are questions of fact for the jury. If he did not possess such capacity, he could not be guilty of contributory negligence.
The master will not be relieved from liability to an infant for an injury received in the course of his employment, on the ground that the injury was the result of mere accident, or of the negligence of a fellow servant, if the infant did not have sufficient capacity to comprehend and avoid the dangers incidental to his employment.
A servant who is authorized by his master to employ and to discharge other servants, and to assign their duties, is, to the extent of such authority, the agent of his master; and whatever knowledge he may have of matters pertaining to the ability and capacity of a servant employed by him to perform a particular kind of work, and to comprehend and avoid the dangers incidental thereto, will be imputed to the master.
A person employed in a coal mine in opening and closing doors and giving signals to approaching trains of coal cars by waving his lamp, is engaged in "trapping."
Error to Circuit Court, Raleigh County.
Action by Jackson M. Ewing against the Lanark Fuel Company. Judgment for plaintiff, and defendant brings error. Affirmed.
McGinnis & Hatcher and Price, Smith, Spilman & Clay, for plaintiff in error.
M. F. Matheny and Sanders & Crockett, for defendant in error.
Jackson M. Ewing, an infant 13 years and 9 months old, was injured on the 7th day of January, 1907, while engaged in coupling cars in the defendant's coal mine in the county of Raleigh, as a result of which injury his right leg was amputated two or three inches above the knee. He sued the company, by next friend, for negligently causing the injury, and obtained a judgment for $8,000. There was a single track leading into the mine for a distance of about 500 feet. At this point it branched into two parallel tracks called a parting. This parting was about 200 feet in length, with a space of 5 or 6 feet between the two tracks. From the entrance to the center of the parting it was downgrade, then for a short distance it was level, and continuing in the mine the grade was upward. There was a swag near the center of the parting. This parting was designed for the passing of the cars. The empty cars were hauled into the mine, five or six at a time, coupled together, and each one was "spragged," so as to prevent its rolling down the grade, and all were left coupled together, standing on the grade on the right-hand track of the parting. The loaded cars were hauled, one at a time, by mules from the various working places in the mine, and were left standing in the swag on the left-hand track of the parting until a train of them, five or six in number, was collected. They were then coupled together. The device for coupling consisted of two or three links forming a short chain, each end of which was attached to a car by means of a clevis and pin. The couplings were removed from the train of empty cars as they were hauled into the mine, and were used to couple together the loaded cars. Plaintiff had been employed on the motor which ran on the outside of the mine; but on the day of his injury the motor was not running, and he was placed in the mine to uncouple the empty cars and to couple the loaded ones. He did this by removing the pin from one end of the coupling, unspragging the car, and allowing it to run down the grade. He would then follow the car down the grade, remove the coupling from the car, and attach it to the loaded ones. At the time of his injury, he had let down all the empty cars of the train, except one, which he supposed was spragged, and, while removing the coupling from the one which he had last let down, the last one of the train, from some unexplained cause, ran down the grade, caught him between it and the one from which he was removing the coupling, and crushed his leg. Defendant took several bills of exceptions to the rulings of the court in giving certain instructions at the instance of the plaintiff, and in refusing certain other instructions asked for by defendant, and also in admitting certain testimony on behalf of plaintiff over defendant's objection, and in refusing certain testimony offered by defendant. The case is here upon writ of error awarded defendant.
Plaintiff in error insists that its demurrer to the declaration should have been sustained, but we think it sufficiently avers a cause of action. The negligence averred is not the particular accident which caused plaintiff's injury, but it is the employment of plaintiff, an infant, and negligently requiring him to perform a duty, the dangers of which he was incapable of comprehending and avoiding, and failing to instruct him how to perform the work, and to guard against the dangers incidental thereto. These averments state a good cause of action. The demurrer was properly overruled.
Plaintiff in error insists that the testimony of John Ewing, plaintiff's father, relative to the growth, development, and training of plaintiff, his lack of travel, and his incapacity, in his present condition, to earn money, was improper evidence, and that it should not have been admitted. The father admitted that he was an illiterate man, unable to write, or even to read, and he may have improperly estimated plaintiff's incapacity to comprehend danger, and to avoid accident and injury, on account of the boy's lack of education. He may not have shown himself very well qualified as an expert to testify on the subject; but the jury was competent to weigh and consider such testimony, and to give to it such value only as it merited, and no doubt did so. Such testimony is of little value; but we fail to see how plaintiff in error could have been prejudiced by it. Jarrett v. Jarrett, 11 W.Va. 584; Farnsworth v. Noffsinger, 46 W.Va. 410, 33 S.E. 246. The boy grew up in the home of his father, and he had ample opportunity to observe his actions. He was therefore certainly competent to give testimony concerning the boy's capacity, notwithstanding he may have given a wrong reason for his estimate of it. It is a matter of common knowledge that many illiterate boys are more astute and alert, and are more capable of taking care of themselves when in the presence of danger, than many other boys of the same age who have had the advantages of a technical education. No doubt the jury considered this fact in estimating the father's testimony. It was not error to permit the father to testify concerning the boy's incapacity to earn money since his injury. Lawson v. Conaway, 37 W.Va. 159, 16 S.E. 564, 18 L.R.A. 627, 38 Am.St.Rep. 17.
The testimony of the boy's father, and of Ben Cary and John Kelly in relation to the father's having told Dave Laing the mine boss, to keep plaintiff out of the mine, is also objected to. It was not negligence in the company to employ the boy against his father's will. 1 Labatt on Mas. & Serv. §§ 18, 21. The father is not suing for loss of his boy's services, and proof that the defendant in error had sufficient capacity to understand the dangers attending his employment, and that he did in fact so understand them, and that he possessed the ability to avoid them, would be a complete defense, whether the employment was with, or without, the father's consent. But is this not a fact proper to be proven, as tending to show incapacity of the boy, for the purpose of charging plaintiff in error with knowledge of his incompetency to perform the service? It certainly tends to prove that the father thought the work was dangerous, and that he did not regard the boy as competent to perform it, and would be sufficient, at least, to put pla...
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