Fuller v. Margaret Mining Co
| Decision Date | 02 December 1908 |
| Citation | 63 S.E. 206,64 W.Va. 437 |
| Parties | FULLER . v. MARGARET MINING CO. |
| Court | West Virginia Supreme Court |
It is well_ settled that the appellate court will not consider objections or exceptions to parts of testimony taken in the trial of a case, unless the same are specifically and particular ly pointed out by a bill of exceptions, or in the brief of counsel, or the assignments of errors, and brought to the attention of the court.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. i 671.*]
In the trial of a case, when the plaintiff has given in his evidence in chief and rests, and the defendant moves to strike out plaintiff's evidence, and his motion is overruled, and the defendant excepts, but goes on with the trial, giving in his evidence, he will be held to have waived his exception to such ruling.
[Ed. Note.—For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.*]
In the trial of a case for damages for personal injuries, when it is sought to hold the master liable for such injuries because of the incompetency of a mine boss, not only the incompetency of the mine boss must be proved, but such incompetency must be shown to be the proximate cause of the injury or to have directly contributed thereto.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § '351; Dec. Dig. § 170.*]
When, in such case, a judgment for the plaintiff is reversed because the evidence is not sufficient to sustain it, judgment will not be rendered by the appellate court for the defendant, unless it affirmatively appears from the record that the plaintiff could not present a different case on a new trial.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4579; Dec. Dig. § 1175.*]
(Syllabus by the Court.)
Error to Circuit Court, Mingo County.
Action by Elijah Fuller against the Margaret Mining Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Anderson, Strother & Hughes, for plaintiff in error.
John L. Stafford and Marcum & Marcum, for defendant in error.
McWHORTER, J. Elijah Fuller, while employed as a coal loader in one of the mines of the Margaret Mining Company, a corporation, was, on the 23d day of January, 1906, injured by a fall of slate, and on the 28th day of June, 1906, instituted in the circuit court of Mingo county his action of trespass on the case against said mining company, laying his damage at $20,000. The declaration alleged negligence on the part of the defendant in not providing a safe place for its employes to work and in employing a mining boss who was incapable and incompetent as inside overseer. At a regular term of said circuit court, the defendant appeared and demurred to the declaration and each count thereof, which demurrer the court overruled, and the defendant entered its plea of not guilty, and issue was joined. On the 7th day of June, 1907, the case was tried before a jury. After the plaintiff had intro-dueed all his evidence, the defendant moved the court to strike out the evidence of the plaintiff and direct a verdict for defendant, which motion the court overruled, and the defendant excepted. The defendant then introduced its evidence, and, after hearing all the evidence and arguments of counsel and receiving instructions, the jury returned a verdict for $500 in favor of the plaintiff. Defendant moved to set aside the verdict and render a verdict in its favor, which motion was overruled by the court and judgment rendered for plaintiff, to which rulings of the court defendant excepted.
The defendant obtained a writ of error and supersedeas from this court. In the course of the trial the defendant excepted to the rulings of the court in admitting certain evidence on behalf of the plaintiff and refusing to admit certain evidence on behalf of the defendant. Not one exception taken to the exclusion or admission of any part of the evidence has been pointed out specifically by bill of exceptions, or in the brief of counsel, or upon the motion for a new trial, or otherwise, to enable this court to pass upon such portions of the evidence as were excepted to in the course of the trial. It has been held in various cases by this court, as well as the Court of Appeals of Virginia, that the court will not consider objections and exceptions to parts of testimony taken in the trial of a case unless the same are specifically and particularly pointed out by bill of exceptions or in the brief of counsel and brought to the attention of the court. Carlton v. Mays, 8 W. Va. 245; Johnson v. Jennings, 10 Grat. (Va.) 1, 60 Am. Dec. 323, Syl., point 1; Beirne v. Rosser, 26 Grat. (Va.) 537; Harman v. Lynchburg, 33 Grat. (Va.) 37; Railroad Co. v. Ampey, 93 Va. 108, 25 S. E. 226; Warren v. Warren, 93 Va. 73, 74, 24 S. E. 913; Railroad Co. v. Shott, 92 Va. 34, 22 S. E. 811; Lake v. Tyree, 90 Va. 719, 19 S. E. 787; Richmond Passenger Co., etc., v. Robinson, 100 Va. 397, 41 S. E. 719; Kay v. Railroad Co., 47 W. Va. 467, 35 S. E. 974.
The overruling of defendant's motion to strike out the evidence of plaintiff and direct a verdict for defendant is complained of as error. After the court had overruled the defendant's motion, and defendant had excepted to the court's ruling, the defendant proceeded to introduce testimony on its behalf, and by so doing waived its exception to the rulings of the court on said motion. In Poling v. Ohio R. R. Co., 38 W. Va. 646, 18 S. E. 782, 24 L. R. A. 215, it is held: "A defendant who, after the plaintiff has...
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