Gallik v. Wheeling Steel & Iron Co.

• Decision Date: 26 January 1915
• Docket Number: 2621.
• Parties: GALLIK v. WHEELING STEEL & IRON CO.
• Court: West Virginia Supreme Court

84 S.E. 253

75 W.Va. 533

GALLIK v. WHEELING STEEL & IRON CO.

No. 2621.

Supreme Court of Appeals of West Virginia.

January 26, 1915

Submitted January 19, 1915.

Syllabus by the Court.

A declaration for personal injuries sustained, due to the alleged negligence of the master to comply with the provisions of section 59, chapter 15H, Code 1913 (sec. 518) requiring machinery, etc., to be safely and securely guarded when possible, or if not possible that notice thereof be posted, etc., which fails to allege that plaintiff's employment required him to go upon the particular machine where he sustained his injuries while the same was in motion and that it was possible to so safely and securely guard the shafts, cogwheels and other parts, which caused his injuries or that no notice of the dangers there from was conspicuously posted as provided by the statute, is bad on demurrer.

A count in such declaration charging negligence generally of the master in failing to adopt and promulgate proper rules for the conduct of his business, and to provide for the safety of his servants, and which avers specially the negligence of the master in failing to promulgate proper rules for stopping and starting of machinery, and forbidding and prohibiting the sudden starting thereof while belts were being removed, repaired and replaced thereon, is good on demurrer, and such demurrer should be overruled.

The principles of non-liability of master for injuries sustained by the negligence of a fellow servant, enunciated in Jackson v. Norfolk & W. R. Co., 43 W.Va. 380, 27 S.E. 278, 31 S.E. 258, 46 L. R. A. 337, and subsequent cases, re-affirmed and applied to the facts presented by the record of this case.

Error to Circuit Court, Marshall County.

Action by Raphael Gallik against the Wheeling Steel & Iron Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Robinson, P., dissenting in part.

D. B. Evans, and Martin Brown, both of Moundsville, for plaintiff in error.

Hubbard & Hubbard, of Wheeling, for defendant in error.

MILLER J.

In an action for personal injuries the judgment complained of set aside the verdict in favor of plaintiff for $11,458.33, and awarded defendant a new trial.

The first point of error is that the court below erroneously sustained defendant's demurrer to the third count of the declaration. This count is predicated on the duty imposed by section 59, chapter 15H, Code 1913 (sec. 518), on the owner or master of "all manufacturing, mechanical and other establishments, in this State, where the machinery, belting, shafting, gearing, drums and elevators, are so arranged and placed as to be dangerous to persons employed therein, while engaged in their ordinary duties" to have the same "safely and securely guarded when possible, and if not possible" that "notices of the danger * * * be conspicuously posted in such establishments."

This count of the declaration, while perhaps otherwise sufficient, is bad on several grounds: First, it fails to allege that plaintiff's duties as an employee to repair and replace belts required him to go up on the particular machine where he is alleged to have sustained his injuries while said machine was in motion; or, second, that it was necessary or possible to safely and securely guard the shaft, pulleys, cogwheels and belts, or metal pin projecting therefrom; or, third, that no notices of the dangers thereof were posted as required by the statute. It is alleged that plaintiff's duties required him to go up on this machine, but not while in motion, and as is alleged, this was a high machine, and the parts referred to were not so located as to be dangerous to plaintiff or other employees, unless required to go up on it while in motion. We think the declaration should have alleged the omitted facts in relation thereto to be good under the statute. The alleged duties of the master in relation to such plant and machinery do not obtain unless the conditions imposing them are present and calling for compliance with the requirements of the statute, and to bring a case within the purview of the statute the declaration should affirm those conditions. Our decisions do hold that the facts being alleged from which the statutory duties arise, the court will take judicial notice of the statute, a breach of those duties being averred. Squilache v. Coal & Coke Co., 64 W.Va. 337, 339, 62 S.E. 446, and authorities cited; 3 Bailey on Per. Inj. (2d Ed.) § 843.

The second point is that it was error to sustain defendant's demurrer to the fourth count of the declaration. This count relates to the alleged negligence of defendant to promulgate rules to govern its employees in operating its machinery, resulting in the injuries sustained by plaintiff. The opinion of the court below was that this count was bad for failure to show how the failure to adopt such rules contributed to or caused the accident, or how the adoption of such rules could have prevented the sudden starting of the machines, and that in the absence of any such showing this count is deficient. Besides averring negligence in failure to adopt and promulgate rules generally, resulting in injury to plaintiff, this count avers defendant's negligence especially in failing to--

"promulgate rules for the government of its said employees in the matter of stopping and starting its said machines and machinery when and while belts were being placed on or removed from its said belt-wheels, and to provide and promulgate proper rules for its said employees, and especially for those of its said servants employed in the running of said machines and machinery, and forbidding and prohibiting the sudden starting of said machines and machinery in motion while belts were being placed on or removed from said belt-wheels by its servants."

And it is distinctly alleged that plaintiff sustained his injuries by such alleged negligence of defendant.

Our decisions have adopted the liberal rule on this subject. If the alleged act of negligence be stated in general terms, and without stating the particular facts going to prove negligence, but stating the main or primary act of omission or commission doing the damage, this will be regarded sufficient pleading. Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733, 39 L. R. A. 499, 64 Am. St. Rep. 922; Veith v. Hope Salt Co., 51 W.Va. 96, 41 S.E. 187, 57 L. R. A. 410; 10 Ency. Dig. Va. & W.Va. Reports, 397 et seq. These authorities say that:

"A declaration in an action for negligent injuries which states the cause of action so that it can be understood by the party who is to answer it, by the jury who are to ascertain the truth of the allegation and by the court who is to give judgment, and which distinctly sets forth when, where, in what manner and under what circumstances the plaintiff was injured by the defendant's defaults, negligence and improper conduct is sufficient."

In 6 Thompson on Negligence, § 7536, it is laid down on the authority of the Oregon case of Wild v. Oregon, etc., R. Co., 21 Or. 159, ^[1] contrary to Voss v. Delaware, etc., R. Co., 62 N. J. Law, 59, 41 A. 224, cited, that the general charge of negligence is sufficient to admit evidence in respect to failure to promulgate rules, and that a defendant in support of his plea of contributory negligence may show that he promulgated rules violated by plaintiff, or other servant, resulting in the injury complained of, and this without pleading the specific fact of such rules. In Texas & P. Ry. Co. v. Cumpston, 15 Tex. Civ.

App. 493, 40 S.W. 546, click here it is distinctly decided, fourth point of the syllabus, that:

"In an action for negligence of an employer in failing to provide rules whereby an employé was killed, plaintiff need not allege or prove exactly what rules should have been made."

But in the leading case of Voss v. Delaware, etc., R. Co., supra, it is decided, point two of the syllabus, that:

"The general averment in a count in a declaration of the negligence of the railroad company to make and enforce reasonable and proper rules and regulations for the guidance of its employés in its business, or in the operation of its railroad yards, is not a sufficient averment of an element of negligence upon which an action for personal injuries by the servant against the company can be based."

We emphasize the fact stated in the opinion as well as in the syllabus of the case last cited that "a general averment" in respect to the promulgation of rules will not do.

But which of these is the correct rule, and whether or not under a general averment of negligence the fact of negligence in failing to adopt and promulgate rules may be given in evidence, or such negligence must be specially pleaded, we need not for the purposes of this case decide, for in our opinion this fourth count sufficiently answers all the requirements of either rule. It avers genererally negligence of defendant to adopt and promulgate rules, and distinctly specifies negligence to adopt and promulgate a rule respecting the stopping and starting of defendant's machines and machinery.

As all the other counts in the declaration seem to be...