Fulton v. The Crosby
| Citation | 57 W.Va. 91 |
| Court | Supreme Court of West Virginia |
| Decision Date | 07 February 1905 |
| Parties | Fulton v. The Crosby & Beckley Company. |
A lumber railroad, crudely and unscientifically constructed, the character of which is fully known to a servant who is engaged in operating a locomotive engine upon it, has, in the contemplation of the parties, and, therefore, of the law, certain elements and qualities upon which the servant may rely for his personal safety, and which the master, by the exercise of reasonable care, must maintain. (p. 95.)
The measure of the duty of a master to his servant is reasonable care, in view of the situation of the parties, the relations they have established, the nature of the business in which the servant is employed, the character of the machinery and appliances used, the surrounding circumstances and conditions and the exigencies which require vigilance and attention. (p. 95.)
A new trial will not be allowed in a case in which only simple issues of fact were raised, dependent upon conflicting oral evidence, thus making the credibility of witnesses an important factor in the case, merely because the verdict is contrary to an excess in the quantum of such evidence, there being direct and positive evidence tending to sustain it, and no controlling physical, admitted or established, facts with which it is inconsistent. (p. 97.)
Error to Circuit Court, McDowell County.
Action by Fred H. Fulton, by his next friend, against the Crosby & Beckley Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Ruoker, Anderson & Hughes and Wyndham Stokes for plaintiff in error.
T. L. Henritze and E. C. Marshall, for defendant in error.
Relying upon the action of the court in overruling a motion to exclude the plaintiff's evidence, and in refusing to set aside the verdict on the ground that it is contrary to the law and the evidence, as grounds of error, the Crosby and Beckley Company complain of a judgment of the circuit court of McDowell county, in favor of Fred H. Fulton, against it, for the sum of $1,500.00.
The section was for the recovery of damages for personal injuries sustained in consequence of the wreck of a wooden bridge or trestle in a logging railroad, on which, as an employe of the defendant, the plaintiff was running on a locomotive engine as fireman. The bridge was something over twenty feet long and consisted of pens built of logs with log stringers, supporting the ties and rails, resting on the pens. It had been in use for more than three years, in which time no previous accident had occurred.
Evidence was introduced to show defects in the bridge in two respects. First, that the stringers, reaching from pen to pen, and supporting the ties and rails, and to which the ties had been spiked, were defective in this, that the sap of the logs, through which the spikes had been driven, had become so sap-rotten as to release the spikes; and second, that the ties had not been sufficiently nailed to the stringers. That the ties had become detached from the stringers at the time of the wreck of the engine seems to be undisputed. They slipped off of the stringers, threw the engine off the bridge, and. then remained fastened together by the rails and swung loose on the stringers.
The witnesses substantially agree in saying that the stringers were sap-rotten and that the rotten wood was from onehalf inch to an inch and a half in thickness. They differ, however, on the question whether, when the bridge was originally constructed, the sap on the top of the stringers, at the points at which the ties rested on them, had been hewn off. The plaintiff himself, as a witness, says nothing on the subject. A. L. Denham, the second witness, is silent as to whether the stringers were surfaced for the ties. W. L. Akers, the third witness, says the spikes had pulled out on account of the stringers being rotten. Whether any part of the sap had been taken off he does not say. The next witness for the plaintiff, Andrew Javens, said the sap was taken off. Plaintiff's next witness, Melvin Camper, thought the stringers had not been surfaced, but was not positive as to that. All of these witnesses, except the plaintiff, had inspected the ties and stringers.
The defendant introduced, first, Lee McChesney, its general manager, who said the stringers had been surfaced off and, in so doing, "the bigger part of the sap had been taken off," but that the amount of sap left on the stringers was not enough to render them defective. R. K. Lowery, who was next introduced, testified that the stringers had been cut down to the depth of an inch or an inch and a half to the solid wood. The evidence for the defendant further shows that the same stringers were put back into the bridge, when it was repaired, with the exception of one, which had either been broken or was too short, and that no additional surfacing had been done on them. And as to this there is no contradiction in the evidence except that some of the witnesses for the plaintiff say they think two new stringers were put in instead of one.
As to the nailing of the ties, Denham said they had not been properly nailed, as he had seen some which bore no evidence of having been nailed, but could not say whether they had been in the bridge or had been brought to the scene of the wreck for the construction of a temporary track for use in putting the engine back on the track. Witness Akers said he had gone on the grounds before any repair work had been done and had seen but few spikes and that not more than one-fourth of the ties had been nailed. Mr. Javens, witness for plaintiff, said all the ties had been well nailed down at each end, with one spike through the center and one on each side "toe-nailed." Camper was positive that only part of the ties had been spiked down, and that it was customary to put only one spike in each end.
The three witnesses for the defendant, McChesney, Lowery and Fitsgerald, all testified that all the ties had been well nailed down and constantly inspected and re-nailed from time to time. Fitsgerald said that, on either Saturday or Monday preceding the Tuesday on which the bridge broke he had gone over it and nailed all the ties down, because he thought some of the spikes might have broken in two.
Any error there may have been in overruling the motion to exclude the evidence for the plaintiff was waived by the introduction of evidence for the defense. Core v. Railroad Co., 38 W. Ya. 456; Trump v. Coal Co., 46 W. Ya. 238.
The case is clearly ruled by the principles governing the relation of master and servant, not by those applicable to common carriers. The plaintiff was an employe and in the line of duty at the time of the injury. As such he must be held to have assumed all the ordinary risks which were incident to the dangerous employment in which he was engaged, Reese v. Ry. Co., 42 W. Ya. 333; Oliver v. R. C Co., Id. 703; Seldomridge v. Railway Co., 46 W. Ya. 569; Berns v. Coal Co., 27 W. Ya, 285; Humphreys v. Newport &c. Co., 33 W. Ya. 135. If the negligence of the master was known to him, he is deemed to have assumed the risk of injury resulting from it also. Sanderson x. Panther Lumher Co., 50 W. Ya, 42; Berns v. Coal Co., 27 W. Ya, 285. An employer does not guarantee the safety of his employe, Stewart v. Ry. Co., 40 W. Ya, 188; Reese v. Ry. Co., 42 W. Ya. 333; Oliver v. R. R. Co., Id. 704.
Nevertheless, the master owes certain duties to his servant. He must provide safe and suitable machinery and appliances for the business in which his servant is employed," keep the same in repair and make proper inspections and tests as to their safety and suitableness. He must exercise reasonable care in providing and retaining sufficient and suitable servants for the business. He must establish proper rules and regulations for the service and conform to them. He must also provide for the safety of the place in which the servant is to work. Jackson v. R. R. Co., 43 W. Ya, 380; Madden v. R. R. Co., 28 W. Ya. 617. These duties are absolute...
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