Findley v. Coal & Coke Ry. Co

CourtSupreme Court of West Virginia
Writing for the CourtWILLIAMS
Citation78 S.E. 396,72 W.Va. 268
PartiesFINDLEY. v. COAL & COKE RY. CO.
Decision Date15 April 1913

(72 W.Va. 268)
78 S.E. 396

FINDLEY.
v.
COAL & COKE RY.
CO.

Supreme Court of Appeals of West Virginia.

April 15, 1913.


[78 S.E. 396]

Rehearing Denied May 29, 1913.)

(Syllabus by the Court.)

1. Trial (§ 139*)—Direction of Verdict— Evidence.

If plaintiff's evidence is sufficient to warrant the jury in finding a verdict upon it, it is error to exclude it.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§, 332, 333, 338-341, 365; Dec. Dig. § 139.*]

2. Master and Servant (§§ 265, 270*)—Injury to Railroad Employe—Negligence— Evidence.

In an action for damages resulting from the explosion of a locomotive boiler, the mere fact of explosion raises no presumption of negligence; but testimony that the broken ends of a large number of stay bolts were rusted and corroded, indicating that they were broken off some time before the explosion, is evidence tending to prove negligence, and the jury are entitled to consider it.

[Ed. Note.—For other cases, see Master and Servant. Cent. Dig. 877-908, 913-927, 932, 955; Dec. Dig. §§ 205, 270.*]

3. Master and Servant (§, 103*)—Injury to Railroad Employe — Liability of Master—Nonassignable Duty.

A railroad company is liable for injury resulting from the explosion of one of its locomotive boilers, if the explosion is due to the negligence of its servants intrusted with the duty of keeping it in repair.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*]

4. Witnesses (§ 396*)—Impeachment—Right to Explain.

A witness, whose impeachment is sought by the production of a paper, admittedly signed by him, containing a statement of facts concerning which he has testified, and inconsistent with his testimony, is entitled to explain the circumstances under which he signed it and his motive for doing so, in order that the jury may fairly judge of his credibility.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1261-1264; Dec. Dig. § 396.*]

5. Evidence (§ 483*)—Injury to Railroad Employe—Opinion Evidence.

A nonexpert witness, who saw the broken stay bolts of a boiler immediately after it had exploded, may testify that the broken ends of the bolts appeared to him to be "old and rusty looking;" but he cannot state that, "in his opinion, they were broken before the explosion, or that they appeared to him to be "in bad condition."

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2256-2266; Dec. Dig. § 483.*]

6. New Trial (§ 150*)—Affidavit—Sufficiency.

An affidavit tendered in support of a motion for a new trial on the ground of after-discovered evidence, which is made on information only, and which assigns no reason for failure to procure the affidavit of such witness, is not sufficient.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 306-310; Dec. Dig. § 150.*]

Error to Circuit Court, Randolph County. Action by Levi J. Findley, administrator, etc., against the Coal & Coke Railway Com pany. Judgment for defendant on directed verdict, and plaintiff brings error. Reversed, and new trial granted.

C. H. Scott and H. G. Kump, both of El-kins, for plaintiff in error.

Price, Smith, Spilman & Clay, of Charleston, for defendant in error.

WILLIAMS, J. Action of trespass on the case to recover damages for the wrongful death of plaintiff's intestate, alleged to have been caused by the negligence of defendant. After plaintiff had introduced all his evidence, the court sustained a motion to exclude it, and directed a verdict for the defendant, and plaintiff obtained this writ of error.

The principal question is: Is plaintiff's evidence sufficient to support a verdict in his favor, if the jury had so found? If it is, the court should have allowed the case to go to the jury.

Plaintiff's intestate, Frank J. Findley, deceased, was employed as fireman on defendant's railroad, and had made two or three runs before his death. On the 30th October, 1909, the boiler belonging to engine No. 16, which deceased was firing, exploded near a station called Yankee Dam, on Elk river, as the engine was making a northbound trip, drawing a train of freight cars. Plaintiff's intestate, the engineer, and another fireman were instantly killed.

It is averred that defendant was negligent, in that it did not use due and proper diligence to keep its engine and boiler in a reasonably safe condition; that it "negligently and carelessly permitted and suffered the said boiler to be weak, unsafe, and insufficient, the sheets of the said boiler to be and remain insufficient to withstand the stress and strain to which they were necessarily subjected, and it negligently, carelessly, and knowingly permitted the bolts and stay bolts of the said boiler to be and remain weak, unsafe, and insufficient, broken off, rusted, and corroded, so that the same were not sufficient to hold the said boiler together, and to resist the stress necessarily placed upon them in the operation of the said boiler." The facts averred, if proven, would constitute negligence, because the master's duty to his servant requires him to provide his servant with reasonably safe machinery with which to work, and to use reasonable diligence to maintain it in a safe condition. The degree of diligence necessary to preserve a locomotive boiler in a reasonably safe condition is a mixed question of law and fact for jury determination, and must be determined from the experiences of men familiar with the construction and proper treatment of such powerful and dangerous machinery, when in use—men who have

[78 S.E. 397]

knowledge of the purposes and durability of its several parts.

The law imposes the burden of proving negligence on plaintiff; and the evidence by which he seeks to prove it is wholly circumstantial, consisting of testimony of witnesses concerning the appearance of the stay bolts which held together the fire box and the main portion of the boiler. A number of witnesses testified that they saw the broken stay bolts immediately after the explosion, and that the broken ends of them were rusted and corroded, thus indicating that they were broken some time before the explosion. Such evidence is not only proper, but apparently it is the only available evidence to support plaintiff's allegations. No living witness knows the amount of steam pressure on the boiler at the time of the explosion. But a witness who fired the engine about a month before the explosion testified that the safety valve was set to a pressure of 180 pounds. It is also proven by a witness who saw the engine from across the river, when it exploded, that it was moving at the rate of eight or ten miles an hour. While it is true that no presumption of negligence arises from the mere fact of the explosion of the boiler (Hanley v. Railroad Co., 59 W. Va. 419, 53 S. E. 625, and Veith v. Salt Co., 51 W. Va. 96, 41 S. E. 187, 57 L. R. A. 410), still negligence may be established by proof of facts which show that the boiler was allowed to become unsafe before it exploded.

It was the duty of defendant to protect its employes against the dangers of an explosion by having its boiler continuously inspected, and repaired when necessary, by competent machinists. If its inspector was negligent, and his negligence was the proximate cause of the death of plaintiff's intestate, then defendant is liable; the duty to maintain the machinery in a reasonably safe condition being a duty which defendant could not delegate to another, so as to relieve it from liability. It is what the law denominates a nonassignable duty. Johnson v. Railway Co., 36 W. Va. 73, 14 S. E. 432.

Harry Bernard, who had had several years' experience in making and repairing boilers, testified that it was a good practice, and the general custom, to wash out locomotive boilers and test the stay...

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15 practice notes
  • Pope v. Edward M. Rude Carrier Corp., No. CC797
    • United States
    • Supreme Court of West Virginia
    • April 21, 1953
    ...of an explosion, without more, furnishes no basis for a presumption of negligence. Findley Adm'r v. Coal and Coke Railway Company, 72 W.Va. 268, 78 S.E. 396; Dickinson v. Stuart Colliery Company, 71 W.Va. 325, 76 S.E. 654, 43 L.R.A.,N.S., 335; Hanley Adm'r v. West Virginia Central and Pitts......
  • Mecum v. Food Machinery & Chemical Corp., No. 10913
    • United States
    • Supreme Court of West Virginia
    • June 17, 1958
    ...456, 76 S.E.2d 759; Pope v. Edward M. Rude Carrier Corporation, 138 W.Va. 218, 75 S.E.2d 584; Findley v. Coal and Coke Railway Company, 72 W.Va. 268, 78 S.E. 396; Dickinson v. Stuart Colliery Company, 71 W.Va. 325, 76 S.E. 654, 43 L.R.A.,N.S., 335; Hanley v. West Virginia, Central and Pitts......
  • Redman v. Community Hotel Corp., Nos. 10521 and 10522
    • United States
    • Supreme Court of West Virginia
    • July 21, 1953
    ...[138 W.Va. 466] one engaged in lawful business. Negligence on his part must be shown.' To the same effect are Findley v. Coal & Coke Co., 72 W.Va. 268, 78 S.E. 396, and Hanley v. West Virginia C. & P. R. Co., 59 W.Va. 419, 53 S.E. 625. See Saena v. Zenith Optical Co., W.Va., 65 S.E.2d 205; ......
  • Findley v. Coal & Coke Ry. Co, (No. 2702.)
    • United States
    • Supreme Court of West Virginia
    • October 12, 1915
    ...in error. POFFENBARGER, J. The disposition of a former writ of error in this case, revealing its character, is reported in 72 W. Va. 26S, 78 S. E. 396. On the new trial awarded by that decision, facts were disclosed which give it an aspect entirely different from that presented on the forme......
  • Request a trial to view additional results
15 cases
  • Pope v. Edward M. Rude Carrier Corp., No. CC797
    • United States
    • Supreme Court of West Virginia
    • April 21, 1953
    ...of an explosion, without more, furnishes no basis for a presumption of negligence. Findley Adm'r v. Coal and Coke Railway Company, 72 W.Va. 268, 78 S.E. 396; Dickinson v. Stuart Colliery Company, 71 W.Va. 325, 76 S.E. 654, 43 L.R.A.,N.S., 335; Hanley Adm'r v. West Virginia Central and Pitts......
  • Mecum v. Food Machinery & Chemical Corp., No. 10913
    • United States
    • Supreme Court of West Virginia
    • June 17, 1958
    ...456, 76 S.E.2d 759; Pope v. Edward M. Rude Carrier Corporation, 138 W.Va. 218, 75 S.E.2d 584; Findley v. Coal and Coke Railway Company, 72 W.Va. 268, 78 S.E. 396; Dickinson v. Stuart Colliery Company, 71 W.Va. 325, 76 S.E. 654, 43 L.R.A.,N.S., 335; Hanley v. West Virginia, Central and Pitts......
  • Redman v. Community Hotel Corp., Nos. 10521 and 10522
    • United States
    • Supreme Court of West Virginia
    • July 21, 1953
    ...[138 W.Va. 466] one engaged in lawful business. Negligence on his part must be shown.' To the same effect are Findley v. Coal & Coke Co., 72 W.Va. 268, 78 S.E. 396, and Hanley v. West Virginia C. & P. R. Co., 59 W.Va. 419, 53 S.E. 625. See Saena v. Zenith Optical Co., W.Va., 65 S.E.2d 205; ......
  • Findley v. Coal & Coke Ry. Co, (No. 2702.)
    • United States
    • Supreme Court of West Virginia
    • October 12, 1915
    ...in error. POFFENBARGER, J. The disposition of a former writ of error in this case, revealing its character, is reported in 72 W. Va. 26S, 78 S. E. 396. On the new trial awarded by that decision, facts were disclosed which give it an aspect entirely different from that presented on the forme......
  • Request a trial to view additional results

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