A. H. Jacoby Co v. Williams

• Decision Date: 09 September 1909
• Citation: 65 S.E. 491,110 Va. 55
• Parties: A. H. JACOBY CO. v. WILLIAMS.
• Court: Virginia Supreme Court

65 S.E. 491

(110 Va. 55)

A. H. JACOBY CO.

v.WILLIAMS.

Supreme Court of Appeals of Virginia.

Sept. 9, 1909.

1. Master and Servant (§ 89^*)—Assumption of Risk—Volunteer Act of Servant.

A servant engaged in blasting, who volunteered to go after powder when the foreman was about to send another man, cannot complain that he was injured by falling rock while going under a hill where blasting had been done.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. S 153; Dec. Dig. § 89.*]

2. Master and Servant (§ 265*)—Presumptions—Methods of Work.

In absence of contrary evidence, it is presumed that the methods of work adopted by a master are sufficient.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 890; Dec. Dig. § 265.*]

3. Master and Servant (§ 265*)—Presumptions — Contributory Negligence — Knowledge of Danger.

A 29 year old workman engaged in blasting rock from a hillside is presumed to be a man of ordinary intelligence, and to have known that, when the side of a rock slope under which he was working was shivered by blasts, the material thereby loosened was liable to fall upon him.

[Ed. Note.—For other cases, see Master and Servant, Cent Dig. § 892; Dec. Dig. § 265.*]

4. Master and Servant (§ 218*)—Warning Servant.

The rule that the master must inform employes of the dangers ordinarily incident to the service, and if the servant has no opportunity to learn them he does not assume risks not obvious to one of his age and experience, only applies where the danger is known or should have been known to the master, and the servant, because of his youth or inexperience, is ignorant thereof and cannot reasonably be expected to discover it by exercising ordinary care.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. § 218.*]

5. Master and Servant (§ 107*)—Master's Liability—Place of Work.

While as a rule the master of a servant employed in dangerous work owes the duty to use ordinary care to make his place of work as reasonably safe as the nature of the work admits, thij rule does not apply where, because of the nature of the work, the character of the place as regards safety is constantly changing.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*]

6. Master and Servant (§ 154*)—Warning Servant—Necessity—Knowledge of Danger.

Where an employe engaged in blasting knew as well as his foreman the perils of going by a path leading under the hill which was being blasted, he could not complain of his foreman's failure to warn him of such perils.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 308; Dec. Dig. § 154.*]

7. Master and Servant (§ 265*)—Actions-Master's Discharge of Duty.

Negligence by a master cannot be inferred from the occurrence of an accident causing injury; the presumption being that he had discharged his duties to his employes.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 881; Dec. Dig. § 265.*]

8. Negligence (§ 59*)—"Proximate Cause."

The requisites of "proximate cause" are the doing or omitting of an act which one of ordinary prudence would anticipate might naturally and probably produce the resulting injury.

[Ed. Note.—For other eases, see Negligence, Cent. Dig. § 72; Dec. Dig. § 59.*

For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol. 8, p. 7771.]

9. Master and Servant (§ 278*)—Actions-Injuries—Sufficiency of Evidence—Negligence.

In an action for injuries to one engaged in blasting off a rock slope, evidence held not to show negligence by defendant.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 278.*]

Error to Circuit Court, Scott County.

Action by W. T. Williams against the A. H. Jacoby Company. Judgment for plaintiff, and defendant brings error. Reversed.

Jos. L. Kelly, for plaintiff in error.

Coleman & Carter, for defendant in error.

CARDWELL, J. This action was brought by defendant in error to recover of plaintiff in error damages for injuries to the plaintiff, alleged to have been caused by the negligence of the defendant.

At this (a second) trial of the case (the jury failing to agree at the first trial), upon all the evidence offered being submitted to the jury, the defendant demurred thereto, in 'which demurrer the plaintiff joined; and, the jury having assessed damages to the plaintiff in the sum of $3,000, subject to the ruling of the court upon the demurrer to the evidence, the court overruled the demurrer and entered judgment in accordance with the verdict.

The following are the facts and circumstances attending the accident out of which the suit arose: Williams (defendant in error and plaintiff below), about 29 years of age, was engaged to work as a common laborer for plaintiff in error (defendant below) upon and about a certain railroad grade which defendant was constructing along the side of a steep and rocky hill, which runs up some distance from Clinch river, and to construct this railroad bed or grade it was necessary to blast and tear down a portion of the cliff above it. The roadbed or grade at that point had been started for a single track, and had been carried through or along the side of the cliff for some distance, when it was determined to widen the grade for a double track.

The upper side or "slope" of the cut through the face of the hill had been blasted off and thrown down once, and another thickness, at the time of the accident to Williams, was being taken off along the upper side; i. e., more of the cliff had to be and was being torn down, and the method of doing this was to drill deep holes on the upper side of the cut, sinking these holes down from a point several feet back from the top of the slope. After the holes had been drilled, they were first "sprung" by charges of dynamite placed and shot in the bottom, the purpose of which was to enlarge and open the hole, so as to admit a heavy charge of powder with which to blow off the material between the hole and the face of the slope. These holes having been "sprung, " the usual and perfectly natural effect was to shake, jar, and "shiver" the side of the slope, and to cause more or less rock, etc., to fall down. All such material, as well as what was blown off by the heavier shots, either rolled on down the hill towards the river, or was lodged on the grade and thrown over on the lower side, or loaded in carts and hauled back on the "dump" or fill, which was a part of the grade extending back from the point at which the cut began; and the slope of the cut all along above the grade through the cliff presented a rough and dangerous appearance, a condition apparent to any one with ordinary vision, as its discovery did not depend upon expert knowledge, or any experience or skill other than that which a man of ordinary intelligence would possess. According to Williams' own statement, his duties were to "pick and shovel and carry steel and things like that, " and he had also carried dynamite from the powder house to the cut where the "shooting" was being done. There is a variance in the evidence as to how long he had been at work at the point of this accident to him; but he admits that he had been working there six or seven days, and that he had a short time before worked, perhaps two weeks, in a borrow pit for the Carolina Company, engaged in the construction of this same roadbed along this same hill, doing the same general class and character of work which the defendant, the A. H. Jacoby Company, was doing at the time of the accident; the latter company having taken up the work where the Carolina Company left off.

Williams was working with a gang of men engaged in and about the cut when the accident to him happened, the chief work being tearing down the face of the slope to widen the roadbed, and they were changing the condition of the slope to that end and for that purpose as fast as they could, and the dangers of the situation were all the time apparent.

Just preceding the accident, some holes had been drilled upon the top of the slope; Williams himself having been up there to carry steel with which to drill them. Upon returning to the cut below, he and others were engaged in loading carts, and while they were so engaged a signal was given from the top of the cut that one of the holes was to be "sprung"; i. e., a "shot" was to be let off. Immediately after the "shot" was let off, Williams, with others who had moved back up in the cut became engaged in loading a cart with rock that had been "shot" down from above. That the rocks all along the slope of the cut were "shivered" and looked dangerous after this "shot" cannot be doubted, although Williams undertook to say in his testimony that "he could not see it, " but admitted that he did not know whether he looked and tried to see or not. In a few minutes one Hensley, who was the foreman (under the walking boss) of the immediate gang at work at this cut, and who had been up on top and near the holes that had been drilled, one at least of which had been "sprung, " came down where Williams and others were at work and said that he needed some dynamite and other material (which, as affirmatively appears, was needed to break up some big stone that had fallen or loosened from the "springing" of the hole in question), and called up one Monroe, a member of the gang, telling him to go to the commissary and powder house for it, and Monroe was "fixing to start" when Williams said, "I can go, " or "I will go, " or something to that effect, adding, in substance, that he was out of tobacco and wanted to get some, whereupon Hensley remarked that he did not care who went. Williams does not admit or deny the statement about the tobacco (which is not at all material), and there is no conflict as to the fact that Hensley first called on Monroe, and that Williams volunteered to go.

After Williams had volunteered to go, Hensley handed him a written order to the commissary clerk, designating the explosives,...