Hall v. Nello Teer Co., No. 13342

CourtSupreme Court of West Virginia
Writing for the CourtBERRY
Citation157 W.Va. 582,203 S.E.2d 145
PartiesEarl HALL, Administrator, etc. v. NELLO TEER COMPANY, a corporation.
Docket NumberNo. 13342
Decision Date12 March 1974

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.

Page 146

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,

Page 147

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).

[157 W.Va. 583] 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.

[157 W.Va. 584] 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

Page 148

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.

[157 W.Va. 585] Albert Chieffalo, an employee of the defendant at the time of the accident,...

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30 practice notes
  • Watson v. Inco Alloys Intern., Inc., No. 28469.
    • United States
    • Supreme Court of West Virginia
    • March 9, 2001
    ...has been abused.' Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960)]." Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974).' Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, [Inc.,] 182 W.Va. 597, 390 S.E.2d 796 (1990).")......
  • Wilt v. Buracker, No. 21708
    • United States
    • Supreme Court of West Virginia
    • May 31, 1994
    ...been abused." Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960) ].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974)." Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, 182 W.Va. 597, 390 S.E.2d 796 Page 199 [191 W.Va. ......
  • Pack v. Van Meter, No. 16561
    • United States
    • Supreme Court of West Virginia
    • October 29, 1986
    ...in which to work and has the further duty to exercise ordinary care for the safety of such persons." See also Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 Consequently, we conclude the trial court did not err in holding that the Van Meters, as the owners of a place of employment, c......
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...been abused." Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960) ].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974)." Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, 182 W.Va. 597, 390 S.E.2d 796 559 S.E.2d 68 (1990)......
  • Request a trial to view additional results
30 cases
  • Watson v. Inco Alloys Intern., Inc., No. 28469.
    • United States
    • Supreme Court of West Virginia
    • March 9, 2001
    ...has been abused.' Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960)]." Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974).' Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, [Inc.,] 182 W.Va. 597, 390 S.E.2d 796 (1990).")......
  • Wilt v. Buracker, No. 21708
    • United States
    • Supreme Court of West Virginia
    • May 31, 1994
    ...been abused." Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960) ].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974)." Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, 182 W.Va. 597, 390 S.E.2d 796 Page 199 [191 W.Va. ......
  • Pack v. Van Meter, No. 16561
    • United States
    • Supreme Court of West Virginia
    • October 29, 1986
    ...in which to work and has the further duty to exercise ordinary care for the safety of such persons." See also Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 Consequently, we conclude the trial court did not err in holding that the Van Meters, as the owners of a place of employment, c......
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...been abused." Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960) ].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974)." Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, 182 W.Va. 597, 390 S.E.2d 796 559 S.E.2d 68 (1990)......
  • Request a trial to view additional results

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