Ferguson v. Middle States Coal & Coke Co.
| Decision Date | 23 May 1916 |
| Docket Number | 3004. |
| Parties | FERGUSON v. MIDDLE STATES COAL & COKE CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
A master will not be charged with liability for injury to a servant, attributed to defects in machinery or appliances where the instrumentalities employed are in construction and operation similar to those commonly used and regarded as safe by other employers in like service, and the injury is such as reasonably could not be anticipated by the master save as the result of the negligence of a fellow servant of the injured employé.
While a servant temporarily transferred to work not within the scope of, but more dangerous than, his regular employment is not presumed to know or assume the peculiar risks of the new service, and in the absence of instruction or warning by the master is entitled to assume the new perils are no greater than those that attach to his regular work, yet, if the master and servant have equal knowledge of the new dangers and they are such as the adult servant had capacity readily to appreciate and understand, failure to warn and instruct will not generally impose liability for a resultant injury.
Error to Circuit Court, McDowell County.
Action by S. J. Ferguson against the Middle States Coal & Coke Company. A verdict for defendant was set aside on motion of plaintiff, and defendant brings error. Reversed, verdict reinstated, and judgment entered for defendant.
See also, 84 S.E. 573.
Anderson, Strother, Hughes & Curd and Strother, Taylor & Taylor, all of Welch, for plaintiff in error.
Russell S. Ritz, of Bluefield, and Hairston, Hairston & Woodrum, of Roanoke, Va., for defendant in error.
The plaintiff, while in the service of the defendant, received the injuries for which he sued. The jury found against him upon all the evidence introduced upon the trial. This verdict the court set aside upon his motion, and the defendant obtained this writ.
The defendant at the time of the injury was engaged in mining and marketing coal from a shaft mine at Unger, McDowell county. The shaft is perpendicular and 185 feet deep. It is lined in part with a stone wall, and in part by heavy timber, to prevent undue water seepage, the corrosion or crumbling of the earth, and the subsidence of the different strata through which the excavation was made. The employés enter and retire from the mine, the equipment and material necessary for the mining operations of the plant are carried into the mine, and all the coal mined is removed from it, through the twin elevators operated in the shaft. The motive power is generated at a power house, and controlled by the employé to whom this function is assigned. He knew by the indicator provided for the purpose the exact situation of the cages whether at rest or in motion, and, if either, the position they occupied. Between them and the shaft walls was left uninclosed a clearance space, as an aid to ventilation.
The engineer in charge of the constructive work necessary for the successful mining operations directed plaintiff to remain at the bottom of the shaft or mine floor on the day of the injury and superintend the removal and replacement of steel rails to be used to repair or extend the trackage in the mine, as they were lowered in the elevator. The length of the rails, as estimated by the witnesses varied from 20 to 30 feet; the weight from 20 to 25 pounds per foot. The method adopted for loading the rails was first to lower the cage a short distance below the surface, hoist each rail so as to permit it to pass partly over the cage crossbeams onto the cage floor, and to stand them endwise therein in a slanting position, supported by the hood of the cage. To prevent their slipping, a piece of timber, variously identified as a mine cross-tie, a 2X4 scantling, or a 2X6 joist, securely was nailed or bolted to the front edge of the cage floor. They were held in place by employés standing on the hood and floor of the cage while it passed down the shaft to the mine level, and were removed from the carriage by raising the ends over the improvised guard rail onto the mine floor and by a gradual hoisting of the elevator cage.
While plaintiff was assisting in replacing the first cageload lowered to a position convenient for haulage into the mine as and where the rails were needed, and while his coemployés were reloading the cage at the top of the shaft, they negligently permitted a rail to escape over the guard rail in the cage and fall down the shaft, where its weight and momentum caused it to sink into the sump at the base of the shaft or into the mine floor, and crumple or buckle and inflict severe, but not serious, injury upon him. The concussion lacerated the scalp by one or more incisions as if made by the edge of a sharp instrument, fractured two metacarpal bones of the right hand, hurt his back, and, he testified, rendered him unconscious, impaired his ability to engage in any employment necessitating the active use of the right hand, and delayed the resumption of work of any character for several weeks thereafter. The extent of the injury, its physical impairment, and the consequential deferred activity, as claimed by plaintiff, the witnesses for defendant deny. These include the physicians and surgeons who saw and attended him immediately after the accident and while he remained as a patient in the miners' hospital at Welch, some of whom denied he was unconscious when they saw him soon after he was brought to the top of the mine shaft.
There is the same diversity in the proof as regards the service plaintiff was employed to perform. He says he was to serve in the capacity of motor boss, the duties of which position required him to see that the motors were kept in repair and to expedite the haulage to the elevator shaft of the coal...
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