Griffith v. American Coal Co.
| Decision Date | 23 February 1915 |
| Docket Number | 2785. |
| Citation | 84 S.E. 621,75 W.Va. 686 |
| Parties | GRIFFITH v. AMERICAN COAL CO. |
| Court | West Virginia Supreme Court |
Submitted February 4, 1915.
Syllabus by the Court.
A count in a declaration for personal injuries based on negligence in employing a boy under fourteen years of age in a coal mine inhibited by statute, is not bad on demurrer, for failure to allege in terms that such illegal employment was the natural and proximate cause of plaintiff's injuries. It is prima facie negligence to so employ an infant within the prohibited age.
X-ray radiograph or shadow pictures are admissible in evidence when shown to have been made with trustworthy instruments, and properly taken, in connection with the evidence of witnesses expert in the use of such instruments and skilled in making reading and interpreting such pictures.
Plaintiff's instruction to the jury, number 1, on the theory of permanent injuries, bodily pain and suffering endured by him, and likely to be endured, and disfigurement, and on the theory of decreased earning capacity due to such permanent injuries, is not bad for lack of evidence justifying the same, nor as authorizing the jury to include in their verdict damages for decreased earning capacity during plaintiff's minority said instruction in terms limiting all damages on account of decreased earning capacity to a time after plaintiff shall have reached his majority.
On the trial of such an action an instruction to the jury proposed by defendant, ignoring plaintiff's theory, supported by sufficient evidence, that at the time of his employment and injuries he was an infant under fourteen years, and his employment illegal and negligent, is properly rejected.
To sustain the defense of contributory negligence in such cases, it must be shown not only that the infant employé had capacity to understand and appreciate his instructions and warning 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; and instructions proposed by defendant in this case propounding a different rule of liability were properly rejected.
So also special interrogatories proposed by defendant in this case, assuming certain facts, but not comprehending all other facts necessary to constitute a complete defense of contributory negligence, were properly denied.
On the trial of such action the account books or other books of a practicing physician or surgeon, containing entries regularly made in due course of business, and who attended the mother at the birth of her child, and the oral evidence of such practitioner verifying such record, are legal and competent evidence to go to the jury on the question of the date of the birth of such infant employé.
The discovery of such legal and competent evidence after the trial of this case, considered in connection with other evidence offered on the motion of defendant for a new trial, and considered also in connection with the evidence adduced on the trial, and the proof of due and reasonable diligence on the part of defendant to discover such new evidence, as shown by the record, constituted good ground for setting aside the verdict and awarding defendant a new trial.
Error to Circuit Court, Mercer County.
Action by Perry Griffith, an infant, etc., against the American Coal Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Stokes & Sale, of Welch, and Lawson Worrell, of Northfork, for plaintiff in error.
A. W. Reynolds, of Princeton, and Sanders & Crockett, of Bluefield, for defendant in error.
Writ of error by plaintiff to the judgment of the circuit court of Mercer County, setting aside the verdict of the jury and awarding defendant a new trial.
The judgment complained of shows defendant's motion was based on numerous grounds, but that the sole ground on which the new trial was awarded was that of newly discovered evidence. In this court defendant relies on all errors assigned. Plaintiff in error challenges the correctness of the judgment based on newly discovered evidence, and insists that the trial court committed no error in its other rulings. We will first consider and dispose of defendant's points of error, and leaving to be considered lastly the ground of newly discovered evidence challenged by plaintiff and relied on for reversal.
First, that the court should have sustained the demurrer to the declaration and to each count thereof. Plaintiff was employed as a trapper in defendant's coal mine. The declaration is in four counts. In brief, the first count charges negligence in the employment of plaintiff, a boy under fourteen years of age, in violation of the statute; the second, that when employed and at the time of his injuries plaintiff was an inexperienced infant, and was negligently placed at a dangerous place of work without proper instructions; the third, that after being so employed as charged in the second count, he was taken from the first place of employment and put at another and more dangerous one without any instructions; and the fourth, that defendant did not use reasonable care and diligence in providing plaintiff with a reasonably safe appliance, namely, a certain door at which he was placed to work.
On this hearing no defects are pointed out in the second, third and fourth counts, and we perceive none. But the sufficiency of the first count, on which alone, it is contended, the verdict could stand, is challenged. It is said that notwithstanding the statute prohibits the employment in a coal mine of a boy under fourteen years of age, such employment is not per se negligence, and that upon the principles of Norman v. Virginia-Pocahontas Coal Co., 68 W.Va. 405, 69 S.E. 857, 31 L. R. A. (N. S.) 504, and Dickinson v. Stuart Colliery Co., 71 W.Va. 325, 76 S.E. 654, 43 L. R. A. (N. S.) 335, it is not sufficient simply to allege employment in violation of the statute; but that it should also be alleged and proven that such violation of the statute was the natural and proximate cause of the injury complained of. We think the count good. One substantially like it was approved in Daniel v. Big Sandy Coal & Coke Co., 68 W.Va. 490, 69 S.E. 993. Moreover, this count, among other things, alleges that plaintiff in the due course of his employment was permitted to work in a dangerous and hazardous place, and was struck by a certain door in the mine and as a result was mashed, injured internally and otherwise. While there is no allegation in terms that such illegal employment was the natural and proximate cause of plaintiff's injuries, yet enough is alleged to show that the dangerous character and places of the work were those against which the statute was intended to protect plaintiff, rendering such breach of the statute plainly the proximate cause of his injuries. We must overrule the point of error.
The second point is that the court erred in admitting the X-ray radiograph or shadow picture of plaintiff's body made by Dr. E. T. Brady, May 13, 1914, and in connection therewith his oral evidence as to what the radiograph showed, and particularly his opinion evidence as to the extent of plaintiff's injuries, the basis of such opinion not having been properly laid. It is said that witness knew nothing of the injury except what he could read from the radiograph, and that it was not shown to have been properly taken, and not shown to be correct; that to make either picture or evidence admissible witness' knowledge must be shown, and that the instrument used in making the picture was trustworthy and the picture properly taken. The authorities cited and relied on for the general proposition covered by the objection and for its application to the facts in the case at bar are 1 Wigmore on Evidence, section 795; 22 Am. & Eng. Ency. Law (2d Ed.) 775; Electric Railroad Co. v. Spence, 213 Ill. 220, 72 N.E. 796, 104 Am. St. Rep. 213; Chicago City Ry. Co. v. Smith, 226 Ill. 178, 80 N.E. 716; City of Geneva v. Burnett, 65 Neb. 464, 91 N.W. 275, 58 L. R. A. 287, 101 Am. St. Rep. 628; Carlson v. Benton, 66 Neb. 486, 92 N.W. 600, 1 Ann. Cas. 159.
The evidence of Dr. Brady shows him to be not only a physician of learning and of long and varied experience, but also that he is an expert in the use of X-ray machines, and in the making and interpreting of radiograph or X-ray pictures; and, moreover, that his machine used in making the picture introduced in evidence and interpreted by him was one of the best machines made; that at the time he took the picture the machine was working satisfactorily, and that the picture was taken under proper circumstances and conditions of the plaintiff's body to make an accurate picture, and witness swore positively that the picture represented correctly the pelvis and pelvic region of plaintiff's body at the time it was taken, and that in taking the picture the instrument was placed at a proper angle to show the ilium and the portion of the pelvis of plaintiff. He was asked by the court:
True other expert physicians undertook to interpret the picture differently from Dr. Brady and gave evidence of the external appearances of plaintiff's body, and the physical tests to which they subjected him, tending to contradict Dr. Brady. But these conflicts were all for the jury to weigh and consider in reaching their...
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