Hale v. McGinley

Decision Date01 February 1938
Docket Number8677.
Citation195 S.E. 201,119 W.Va. 565
PartiesHALE v. McGINLEY et al.
CourtWest Virginia Supreme Court

Submitted January 18, 1938.

Syllabus by the Court.

Rule VI (e), Rules of Practice and Procedure for Trial Courts in West Virginia, sanctions the consideration of only specific objections to instructions. That rule is given statutory effect by Acts 1935, c. 37. A general objection to an instruction will not subject it to judicial scrutiny.

Error to Circuit Court, Pocahontas County.

Action by Mason Hale against E. E. McGinley and others, to recover for an injury sustained while working for defendants. To review a judgment for plaintiff, defendants bring error.

Affirmed.

S. H Sharp, of Marlinton, and J. L. Dillow, of Narrows, for plaintiffs in error.

Walter G. Burton, of Princeton, and Sanders & Day, of Bluefield, for defendant in error.

HATCHER Judge.

The plaintiff labored for defendants, who were in the timber business. They were not subscribers to the Workmen's Compensation Fund. In the course of plaintiff's employment, his hand was painfully cut and permanently injured by an axe wielded by Charles Frazier, a fellow workman. For that injury, plaintiff recovered a judgment of $1,500.

There were no eyewitnesses of the accident besides plaintiff and Frazier, and their accounts differ. Plaintiff testified that he was uncovering the root of a walnut stump with a mattock that as he raised the mattock, the axe struck his hand; and that the last time he had noticed Frazier before the accident, he was about ten feet distant. Frazier testified that he was chopping a root on the opposite side of the stump from plaintiff; and that he did not know of plaintiff's approach until his hand came between the descending axe and the root. Further detail seems unnecessary, since the conflict in statements was essentially a jury question. Defendants charge, however, that the submission to the jury was not fairly made, inasmuch as an instruction given at plaintiff's request assumed that Frazier was negligent. The alleged assumption is contained in the following lines "The court instructs the jury that if you believe from the evidence in this case that the plaintiff's injuries were caused by the negligence of Charlie Frazier in striking the plaintiff on the hand with an axe. * * *" This premise is inept, but the trial court's attention was never directed to it specifically; only a general objection being made to the instruction. Plaintiff invokes rule VI (e) of Rules of Practice and Procedure for Trial Courts in West Virginia, which provides as to...

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