Griffith v. Am. Coal Comfany.

• Decision Date: 28 March 1916
• Citation: 78 W.Va. 34
• Court: West Virginia Supreme Court
• Parties: Griffith v. American Coal Comfany.

78 W.Va. 34

Griffith

v.American Coal Comfany.

Supreme Court of Appeals of West Virginia.

Submitted March 7, 1916.

Decided March 28, 1916.

1. Trial Instructions Correction.

If an instruction asked for does not correctly propound the law, the court may correct and give it in the modified form. (p. 88).

2. Same Interrogatories Right to Answer Waiver.

Where an interrogatory has been submitted to the jury, and the jury fail to answer it, or report to the court that they disagree as to the answer, and at the same time return a general verdict, and the verdict is received by the court and the jury are discharged, and the party who submitted it does not object before the jury are discharged, to the discharge of the jury without answering the interrogatory, he will be deemed to have waived his right to have the answer. (p. 39).

3. Same Separate Verdicts Special Findings Purpose of Statute.

Section 5, chapter 131J of the Code, authorizes the court upon the trial of issues, to submit to the jury questions, and to require the jury to render separate verdicts upon the issues, or find in writing upon particular questions of fact." Where any such separate verdict or special finding shall be inconsistent with the general verdict, the former shall control the latter." The purpose of the statute is to ascertain and separate one or more controlling facts, to the end that the existence or non-existence of some facts upon which the issue turns may be deliberately examined, patiently considered, and expressly found, so that a proper judgment may be rendered, according to the truth and the very right of the case. (p. 41).

4. Same Submission of Interrogatories "Material Question."

It is proper not to permit an immaterial question to be propounded, and it is immaterial, unless an answer thereto, if contrary to the general verdict, would control the same, and be conclusive of the verdict. (p. 41).

5. Same Special Findings General Verdict "Inconsistency."

The special findings, taken as a whole, must be clearly inconsistent with the general verdict, and, to be inccnsistent, they must clearly exclude every conclusion that would authorize a verdict for the plaintiff. (p. 41).

6. Master and Servant Injury to Minor Employe Actionable Negligence Violation of Statute.

A violation of the statute inhibiting the employment of boys under fourteen years of age in coal mines constitutes actionable negligence whenever that violation is the natural and proximate cause of an injury. (p. 42).

7. Same Injury to Servant Employment of Minors Violations of Statute '' Proximate Cause.''

The violation of the statute is rightly considered the proximate cause of. an injury which is a natural, probable, and anticipated consequence of the non-observance. (p. 42).

8. Same Injury to Servant Employment of Minor Liability of Master.

The employer is not, as a matter of law, chargeable with all injuries that result during the unlawful employment. He is only liable for those injuries against which the statute is intended to guard. (p. 42).

9. Same Assumption of Risk Unlawful Employment.

If the employment is unlawful, the servant cannot be held to have assumed the risks incident thereto, including the risk of injury by fellow servants. (p. 42).

10. Same Injury to Servant Unlawful Employment Contributory Negligence.

Contributory negligence on the part of a boy injured in the un lawful employment may avail the employer as a defense, unless it be the same that must reasonably be anticipated as a probable consequence of the non-observance of the law. (p. 42).

11. Same Injury in Unlawful Employment Contributory Negligence Proof.

To sustain the defense of contributory negligence in such cases, it must be shown not only that the infant employee had capacity to understand and appreciate his instructions and warnings against the dangers incident to his unlawful employment, but that he in fact did understand them, and that his supposed negligent act was not such as the statute was intended to provide against, but also that he was possessed of such unusual wisdom and sagacity as to take him out of the class of youths under fourteen years which the statute was intended to protect. (p. 42).

12. Appeal and Error Decision New Trial Verdict Evidence.

An appellate court will not grant a new trial on the sole ground that the verdict is contrary to the evidence, unless the verdict is manifestly wrong, or is plainly not warranted by the facts. (p. 48).

Error to Circuit Court, Mercer County.

Action by Perry Griffith, an infant, etc., against the American Coal Company of Allegheny County. Judgment for plaintiff, and defendant brings error.

Affirmed.

Sanders, Crockett & Kee and A. W. Reynolds, for plaintiff in error.

Stokes & Sale and Lawson & Worrell, for defendant in error.

Mason, Judge:

This case was in this court once before on a writ of error. The judgment of the court below awarding a new trial was affirmed and the case was remanded to the circuit court for that purpose. Another trial was had. The case is here again upon writ of error. The pleadings in the case were settled in the former adjudication. The report of the former case will appear in Volume 75 of the reports of this court. On the second hearing there was a trial by a jury, and verdict for the plaintiff for $4,000.00. A motion to set aside the verdict was refused, and judgment was entered on the verdict.

The declaration contains four counts. The first count is predicated entirely upon the theory that the plaintiff at the time of the injury was under fourteen years of age, and that his employment by the defendant was in violation of law and negligent. The second count charges that the plaintiff was an inexperienced youth, and that he was employed and put to work in a dangerous place, without having been given proper instructions and warning by the defendant company. The third count is predicated upon the theory that the plaintiff was an inexperienced youth and that he was put to work in a dangerous place, from which he was thereafter changed to another place of employment that was more hazardous, and that he was not instructed as to the exact hazard attending the employment at his new post. The fourth count avers that the plaintiff was an immature youth, inexperienced in the work of a trapper, that he was employed to trap in the mine of the defendant company, and that the defendant failed to use reasonable care and diligence in furnishing plaintiff with safe appliances with which to work.

The appellant complains of plaintiff's instructions Nos. 3 and 5. It is only necessary to remark that No. 3 was given on the former trial, and passed upon and approved in the former decision of this court. We see no reason for changing our opinion in this regard. No. 5 was refused by the court, and of course is not subject to comment at the instance of the appellant. This fact seems to have been overlooked by counsel on both sides in the preparation of the briefs.

The defendant asked the court to give to the jury ten instructions, to which the plaintiff objected. The court gave Nos. 1, 8, 9, and 10, and refused the others. No. 7 was given in a modified form.

Defendant does not press exceptions here for refusal to give No. 3, but insists that the court erred in refusing Nos. 2, 4, 5, and 6, and also in refusing to give No. 7 as asked for, and in modifying it. No. 2 is a binding instruction and tells the jury that if they believe that the plaintiff was fourteen years old at the time of the injury, they should find for the defendant. This is erroneous. It would limit the plaintiff's right to recover to the first count. Nos. 4, 5, and 6 are binding instructions, and erroneous because they tell the jury that there can be no recovery on the 2nd, 3rd, and 4th counts of the declaration. For this reason they were properly refused.

Instruction No. 7 as asked for by the defendant is: "The court instructs the jury that if the plaintiff relies upon the fact that he was under fourteen years old at the time of the accident for a recovery that then the burden of proof is upon him to establish this fact by a preponderance of the evidence, and that unless the evidence preponderates in favor of his being under fourteen that then he has failed to carry the burden and the jury shall find for the defendant." As given by the court it is as follows: "The court instructs the jury that if the plaintiff relies upon the fact that he was under fourteen years old at the time of the accident for a recovcy that then the burden of proof is upon him to establish this fact by a preponderance of the evidence."

We are of opinion that this instruction as modified by the court gave the defendant all that it was entitled to on this subject. The instruction as asked for by the defendant would have given the defendant more than it was entitled to. It was proper for the court to tell the jury, as was substantially done by the court's instruction, that to entitle the plaintiff to recover under the first count the burden was on him to prove that he was under fourteen years old at the time of the accident; but the defendant's instruction went farther and told the jury that if the plaintiff relied on this fact and failed to prove it, they must find for the defendant. This would be requiring the jury wholly to ignore proof offered to maintain the allegations of other counts. The plaintiff had the right to rely on all the counts. This court has frequently held that such instructions are erroneous. "An instruction which singles out certain facts and makes the case turn on them ignoring other material facts in the case is erroneous." Robinson v. Lowe, 50 W. Va. 75. "It is the object and office of instructions to define for the jury, and to direct their attention to, the legal principles which apply to, and govern, the facts proved or presumed in the case. The instructions should simply develop the rules of law governing the particular facts, all the facts, not a part only, which the...