Hall v. Nello Teer Co., 13342

• Decision Date: 12 March 1974
• Docket Number: No. 13342,13342
• Citation: 157 W.Va. 582,203 S.E.2d 145
• Court: West Virginia Supreme Court
• Parties: Earl HALL, Administrator, etc. v. NELLO TEER COMPANY, a corporation.

Page 145

203 S.E.2d 145

157 W.Va. 582

Earl HALL, Administrator, etc. v. NELLO TEER COMPANY, a corporation.

No. 13342.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 29, 1974.

Decided March 12, 1974.

Syllabus by the Court

1. A general contractor or the employer of an independent contractor has the duty to exercise ordinary care for the safety of an employee of the independent contractor, and to furnish such employee a reasonably safe place in which to work.

2. 'An independent contractor who works on premises where his contract requires him to be is an invitee, and while thus engaged he is entitled to the protection of ordinary care on the part of the owner or occupier of the premises, and such invitee must be furnished a reasonably safe place in which to work.' Point 2, syllabus, Ferguson v. R. E. Ball and Co., 153 W.Va. 882, 173 S.E.2d 83.

3. 'It is the peculiar and exclusive province of a jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed.' Point 2, syllabus, Skeen v. C and G Corporation, W.Va., 185 S.E.2d 493, (Decided by this Court December 14, 1971).

4. 'Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.' Point 5 syllabus, Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598.

5. 'The general rule is that no party may assign as error the giving of or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly the matter to which he objects and the grounds of his objections and ordinarily this Court, in the exercise of its appellate jurisdiction, will consider only objections which have been made in this manner.' Point 2, syllabus, Lambert v. Great Atlantic and Pacific Tea Co., W.Va., 184 S.E.2d 118 (Decided by this Court June 29, 1971).

Bachmann, Hess, Bachmann & Garden, John B. Garden, R. Noel Foreman, Lester C. Hess, Jr., Wheeling, for appellant.

Schrader, Miller, Stamp & Recht, Arthur M. Recht, Wheeling, Madden & Hughes, G. Charles Hughes, Moundsville, for appellee.

BERRY, Justice:

This is an appeal instituted by Nello Teer Company, the defendant below and hereinafter referred to as the defendant, from a final judgment of the Circuit Court of Marshall County entered April 24, 1972 which overruled the defendant's motion to set aside the jury verdict and award it a new trial. The jury returned a verdict in favor of Earl Hall, the administrator of the estate of Gregory Hall, hereinafter referred to as the plaintiff, in the amount of $11,150.74 as a result of the plaintiff's action for wrongful death. This Court granted the defendant's appeal on March 5, 1973 and on January 29, 1974 the case was submitted for decision upon the arguments and briefs on behalf of the respective parties.

The defendant was a general contractor under a contract with the State Road Commission of West Virginia to relocate West Virginia Route 2 in Marshall County. As part of the contract, the defendant was required to 'terrace' or 'bench' the hillside to the east of the proposed highway. 'Benching' is the process of cutting away the hillside at various intervals starting at the top and is used to prevent rock or dirt slides from blocking the highway.

The plaintiff's decedent was an employee of Stegman & Schellhase, Inc., which was an engineering firm employed by the defendant. It is undisputed that Stegman & Schellhase, Inc. was an independent contractor as far as its relationship with the defendant was concerned. The engineering firm was responsible for determining whether the defendant was performing the excavation in accordance with plans and specifications and for marking various places on the benches for blasting. The plaintiff's decedent, who was seventeen years of age at the time of his death, was hired by Stegman & Schellhase on August 11, 1966. The plaintiff's decedent was a rodman and was involved in the placing of construction layout stakes in the area of the new roadway and setting grade stakes in the area where the benches were being constructed. He had been warned by his supervisor of the danger of falling rocks while working at the base of the high walls which comprised the backs of the benches.

On October 6, 1966 the plaintiff's decedent was one of four employees of the engineering firm sent to the construction site to take various measurements. The plaintiff's decedent was working with a fellow employee, one Louis Wojcicki, on the second bench from the top. Their job was to place stakes in the appropriate locations on the benches so that the drilling rigs could come in later to drill holes for blasting. Wojcicki testified that shortly before the accident he was operating the survey transit about 40 or 50 feet west of the wall of the bench. The plaintiff's decedent was placing stakes and holding the level rod for elevation measurements at the base of the wall. Wojcicki testified he walked over to the base of the wall to assist the plaintiff's decedent in placing a stake in the ground with a small sledge hammer. After the stake was in place, Wojcicki stood up and began to turn to his right when a large rock, weighing approximately 4700 pounds, fell on both men, seriously injuring Wojcicki and killing plaintiff's decedent. The rock fell from the face of the wall at a point about 18 or 20 feet above the bench.

Albert Chieffalo, an employee of the defendant at the time of the accident, testified on behalf of the plaintiff that he had observed a large rock protruding three to four feet from the face of the wall on the second bench when he was working as a flagman near the place of the accident. However, Chieffalo also stated that he had not been working in the area of the accident for approximately 13 days prior to the accident. He testified that he considered this situation dangerous and had made a point to pass by the base of the wall at a safe distance. Chieffalo also testified that on one occasion he observed a front-end loader tap the rock three or four times and then drive away. Although Chieffalo considered the situation dangerous, he never informed anyone of the condition even though all employees of the defendant attended safety meetings every Monday and were encouraged to report any dangerous conditions on the work site. Chieffalo testified he felt that someone else wound remedy this dangerous condition.

However, Wojcicki, the injured co-worker, testified he did not observe anything unusual about the face of the wall on the day of the accident. Paul Roberts, an employee of the State Road Commission, was sitting in a truck about 50 feet from the decedent and Wojcicki when the rock fell. He testified that a front-end loader was operating about 100 yards from him and two or three drilling rigs were operating about 100 feet away and were causing a considerable amount of vibration. He stated that he did not observe anything wrong with the face of the bench. However, Roberts testified he noticed that small pieces of coal or 'fines' were falling on plaintiff's decedent while the decedent was working at the base of the wall. Roberts testified that Wojcicki, who was about 50 feet away from the wall at the transit, 'hollered something at the Hall boy' and pointed above the plaintiff's decedent's head. The plaintiff's decedent looked up and went back to work. Roberts testified that shortly thereafter Wojcicki joined the plaintiff's decedent at the base of the wall. Roberts testified the rock looked as if 'it just busted through' the face of the wall.

Although Chieffalo also testified he had observed coal or sand sifting down from the face of the wall on various occasions some thirteen days prior to the accident, Wojcicki testified he had not noticed any 'fines' at the base of the wall. John Schellhase, the supervisor of the crew from the engineering company, testified that he did not notice anything unusual about the face of the wall on the second bench as he went by it on the morning of the accident. Schellhase also testified as to the strata of the wall. He stated that the bottom layer was soft, gray, sandy shale followed by a layer of medium hard, gray shale. Above this was a layer of soft black coal...