Hall v. Boomer Coal & Coke Co.
| Decision Date | 15 February 1916 |
| Docket Number | 2911. |
| Citation | 87 S.E. 1016,77 W.Va. 605 |
| Parties | HALL v. BOOMER COAL & COKE CO. |
| Court | West Virginia Supreme Court |
Submitted February 8, 1916.
Syllabus by the Court.
Without giving him notice and warning of the danger, or adopting promulgating and enforcing some reasonable rules for his protection, it is actionable negligence for a coal mining company to put to work at or under its coal tipple in a place of danger a carpenter, not regularly employed there, and who is ignorant of the custom or practice of such company of dropping coal cars down an incline track under such tipple at irregular intervals without notice or warning to its employés, whereby he is injured and killed.
Error to Circuit Court, Kanawha County.
Action by Thomas P. Hall, administrator, etc., against the Boomer Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Payne Minor & Bouchelle, of Charleston, for plaintiff in error.
C. C Knapp, of Winfield, and McClintic, Mathews & Campbell, of Charleston, for defendant in error.
Action on the case for negligently killing Perry E. Hall, a carpenter employed in building one of defendant's coal tipples. Plaintiff obtained a verdict and judgment for seven thousand dollars, and defendant sued out of this court the present writ of error.
The first point is that the court below erred in overruling defendant's demurrer to the declaration and each count thereof. The declaration is in two counts, the first predicated right of action on the ignorance of deceased, not regularly employed there, as to the custom of defendant in dropping empty cars under the tipple, where deceased was then at work, from an incline track without warning or signal of any kind, and the duty of defendant and breach of that duty to warn and instruct him, and its negligence in so dropping a heavy car upon him while at work under said tipple, resulting in his death.
The second count is like the first except that in addition to charging failure to instruct and warn deceased, the duty and breach of the duty of defendant to adopt, promulgate and enforce reasonable rules respecting the operation of its tipples and railroad cars thereunder from such incline track, and to give notice and warning of the approach of such cars to employés at work under such tipple, is also averred.
The demurrer presents three questions, the first, applicable to both counts, whether under the facts and circumstances the law imposed upon defendant the duty of warning and instructing; the second, applicable to the second count alone, whether under the same facts and circumstances, or generally, the law imposes on a coal mining company the duty to adopt, promulgate and enforce any rules respecting the operation of coal cars upon and from incline tracks and under its tipples in the manner set out in the declaration; and third, whether the duty and breach of duty to warn and instruct, and to adopt, promulgate and enforce rules are well pleaded.
On the first question, deceased was not employed in connection with the operation of the coal tipple, or in the operation of the cars thereunder from the incline tracks; he was employed as a carpenter to assist in building and completing the tipple. If ignorant of the dangers incident to the manner of operating cars on the track at irregular intervals, as the declaration alleges, was he not entitled to be instructed and warned of the dangers, and how to avoid them? Generally it may be said to be the duty of a master to warn his servant against perils "arising from the manner in which the instrumentalities are affected by isolated events which occur at more or less frequent intervals during the performance of the servant's work, but which produce no permanent effect upon the intrinsic condition of the instrumentalities themselves." 3 Labatt on Master and Servant, section 1112; Cave v. Blair Limestone Co., 74 W.Va. 752, 82 S.E. 1095. This unless the dangers are so obvious that the servant does or should fully comprehend them. Ewing v. Lanark Fuel Co., 65 W.Va. 726, 65 S.E. 200, 29 L.R.A. (N. S.) 487. The declaration in this case alleges ignorance of the deceased as to these matters. Whether he did know of the dangers incident to his special employment, and fully comprehended them, or that they were so obvious as to charge him with notice thereof, were questions of fact upon the evidence. The pleading, we think, was sufficient to admit the evidence on these questions.
Upon the second question, the duty to adopt, promulgate and enforce rules, alleged in the second count, we think this count is good on demurrer, alleging as it does, the breach of that duty, in connection with the like breach of defendant's duty to warn and instruct, contained also in the first count. Among other things it was objected to this count that the averment of the duty and breach of duty to adopt, promulgate and enforce rules, was too general, no specific and reasonable rule applicable being averred. We think, however, that the liberal rule adopted here, and applied in Gallik v. Wheeling Steel & Iron Co., 75 W.Va. 533, 84 S.E. 253, makes this count good also on demurrer. Here, as there, the averment is more than general. There the averment was the breach of duty to formulate rules for the stopping and starting of machinery, etc. Here it is limited to the operation of cars on the incline track and on the tipple where deceased was employed. Upon these considerations we think both counts of the declaration good, and that the demurrer was properly overruled.
Of the questions remaining to be considered, presented by exceptions to the introduction of testimony, instructions to the jury given and refused, interrogatories propounded to the jury interrogatories rejected, and defendant's motion for a new trial, the first is, does the evidence show a breach of duty to warn and instruct the deceased justifying the verdict? The deceased was not regularly employed in operating the tipple or the cars on the incline track. His employment on the tipple was special, and the jury may well have found from the evidence, as contended by the plaintiff, that the only other instance in which deceased was employed there, was on the 12th day of November, 1911, a Sunday, preceding his injury and...
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