De Francesco v. Piney Mining Co.
| Decision Date | 12 October 1915 |
| Docket Number | 2808. |
| Citation | 86 S.E. 777,76 W.Va. 756 |
| Parties | DE FRANCESCO v. PINEY MINING CO. |
| Court | West Virginia Supreme Court |
Submitted September 21, 1915.
Syllabus by the Court.
Section 26 of chapter 15p, Code 1913 (ser. sec. 682), denying to certain classes of employers of labor the benefit of the common-law defenses of contributory negligence and assumption of risk, on their failure to take the benefit of the Workmen's Compensation Act, is constitutional and valid.
Such abolition of the doctrine of assumption of risk does not prescribe acts on the part of an employer, which, by the common law, were rightful and free from negligence. Its purpose is to forbid an application of the principle of waiver by which, at common law, the servant is made to assume the risk of known negligence on the part of the master, by reason of his continuing in the service with knowledge thereof.
To make a master liable for an injury to a servant, by reason of his omission of a duty imposed upon him by a statute, in favor of the servant, the existence of a causal relation between such omission and the injury is essential.
Neither the common law nor a statute requiring a master to instruct his inexperienced servants, as to the dangers incident to their work, imposes duty to instruct a servant of mature age and presumptively of average intelligence, as to unnecessary acts and conduct on his part that are commonly known to be dangerous, nor any duty to anticipate them and warn the servant of the danger thereof.
Failure of the employer of an inexperienced coal miner, to warn him of the danger incident to the taking of a stick of dynamite with an ignited fuse attached, from a drill hole, almost immediately after discovery of lack of scintillation by the fuse, is not negligence; and the employer is not liable for an injury occasioned by such an act.
Error to Circuit Court, Raleigh County.
Action by Antonio De Francesco against the Piney Mining Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.
Davis Davis & Hall, of Charleston, and McGinnis & Hatcher, of Beckley, for plaintiff in error.
C. M Ward, of Beckley, and T. N. Read, of Hinton, for defendant in error.
For the loss of a hand and an eye and other injuries caused by the explosion of a stick of monobel, a form of dynamite, the plaintiff employed by the defendant as a coal miner, at the time of his injuries, recovered a judgment for the sum of $5,000, against the latter, on the theory of its negligent failure to warn him of the danger of his employment and instruct him as to methods of avoiding it.
Certain defenses formerly available in actions of this kind, assumption of risk, contributory negligence, and injury by negligence of a fellow servant, were abrogated by the Workmen's Compensation Act. Prior to the injury, the defendant had made application for the benefit of that statute, and the commission had fixed and assessed the premiums; but the company was in default as to payment thereof at the time of the injury, wherefore it was as effectually denied the benefit of that law as if it had never made application therefor. As an employer of labor, it was bound to place itself under the protection of that law or lose the benefit of the defenses to which reference has been made. The statute expressly provided that an employer subject thereto, who should not elect to pay into the funds the premiums provided, or, having so elected, should be in default of payment of the same, should be liable to his employés for damages suffered by reason of personal injury sustained in the course of employment, caused by his wrongful act, neglect, or default, or by such act of any of his agents or employés, and should not be permitted to avail himself of any of said common-law defenses.
An assignment of error, denying the constitutionality of the statute, is not insisted upon in the argument, and therefore may be regarded as having been abandoned. However, power in the Legislature to pass such a statute has been affirmed by many decisions. It does not make an employer liable except in cases of his own direct or indirect negligence or wrongful act, and the defenses inhibited or barred are such as the Legislature had a clear right to eliminate for reasons of public policy.
The sole issue in the case arose from the allegation of negligence on the part of the defendant, consisting of failure to instruct the plaintiff, or cause him to be instructed, respecting the proper use of the explosives, in view of his lack of experience in the use thereof as well as in the work of mining coal.
Besides its basis in the common law, the duty alleged to have been broken has another in the statute (section 17, c. 15H, of the Code, ser. sec. 476), making it the duty of the mine foreman or his assistant "to see that every person employed to work in such mine shall, before beginning to work therein, be instructed as to the particular danger, incident to his work in such mine," and providing that:
"Every inexperienced person so employed shall work under the direction of the mine foreman, his assistant or such other experienced worker as may be designated by the mine foreman or assistant until he is familiar with the danger, incident to his work."
Under the law as it was before the enactment of the Workmen's Compensation Act, the operator was not liable for the result of the nonperformance of this duty, because the mine foreman was regarded as a fellow servant whose negligent acts were governed by the fellow-servant rule. Section 26 of the Workmen's Compensation Act specifically takes away this right of defense, saying an employer who neglects to take the benefit of the act "shall not avail himself of any defense that the negligence in question was that of some one whose duties are prescribed by statute." The obvious effect of this, read in connection with another provision of the same section, making the employer liable for the wrongful act, neglect, or default of any of his officers, agents, or employés, is to make the mine foreman virtually a vice principal.
Inability of the plaintiff to read, write, or understand the English language and of the company's officers to speak or understand the Italian language has led to conflict in the testimony, as to whether he was employed as an inexperienced miner, and contradictory statements put into the evidence in the case introduce an element of uncertainty as to whether or not, in point of fact, he was an inexperienced miner. The negotiations for his employment were conducted through interpreters who did not speak the English language accurately. In the presence of the plaintiff, they represented to the company's officers that he had worked in mines in Pennsylvania, for three years, and his nephew with whom he worked in the mines of the defendant company, says he told him he had worked three years, evidently at mining, since, being a mature man, he must have worked many years at something; but he does not give the time of this admission. This man, as well as the mine foreman, testifies that De Francesco did his work about as effectually and expeditiously as the other miners. However, he denies that he had ever had any experience as a miner,...
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