Hoffman v. Dickinson

• Decision Date: 28 February 1888
• Citation: 6 S.E. 53,31 W.Va. 142
• Parties: HOFFMAN v. DICKINSON.
• Court: West Virginia Supreme Court

6 S.E. 53

31 W.Va. 142

HOFFMAN v. DICKINSON.

Supreme Court of Appeals of West Virginia.

February 28, 1888

Submitted January 23, 1888.

Syllabus by the Court.

Under section 14 of chapter 125 of the Code, no plea in abatement for a misnomer is allowed in any action; but the declaration and summons may, on motion of either party, on the affidavit of the right name, be amended by inserting the same therein.

Where there are several courts in a declaration, and no damages named in any but the last count, the declaration is sufficient, as the damages claimed at the end of the declaration applies to each of the counts.

A declaration by a servant against his master for an injury which properly charges the master with negligence, although it does not allege knowledge of the defect in the machinery which caused the injury, in the master, or that he ought to have known of such defect, and does not allege ignorance of such defects in the plaintiff, is sufficient.

When a servant enters into the employment of a master, he assumes all the ordinary risks incident to his employment, whether the employment is dangerous or otherwise.

The master must provide for the safety of his servant, as far as can reasonably be expected under the circumstances; but he is not obliged to take more care of his servant than he would be expected, as a prudent man, to take of himself.

If a servant willfully encounters dangers which are known to him or are notorious, the master is not responsible for any injury occasioned thereby.

The measure of care which a master must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected, and the whole risk his own.

Negligence and ordinary care are correlative terms. What constitutes ordinary care depends upon the circumstances of each particular case. It is such care as a person of ordinary prudence would under the circumstances exercise.

If the master has been guilty of negligence in failing to procure suitable appliances, or machinery, for carrying on his business, and injury results therefrom to his servant, he must respond in damages, unless the servant, well knowing the default in this respect, enters upon the employment, or continues therein after such knowledge. In such case he assumes the increased risk, and cannot hold the master responsible for the consequences. But if the servant knows the defect or danger, and has reasonable grounds to believe that the master has cured, or would immediately cure, the defect, he is not guilty of contributory negligence, by remaining in the service, and may recover for injury caused by such negligence of the master. ^[1]

If a master, by his conduct, actions, or words, having knowledge of a danger of which the servant is ignorant, lulls the servant into a sense of security, by which he is injured, the master is answerable in damages. ^[1]

A servant cannot recover for an injury suffered, in the course of his employment, from a defect in the machinery or appliances used by the master, unless the master knew, or ought to have known, of the defect, and the servant was ignorant of such defect, or had not equal means of knowledge.

A servant had his leg broken by reason of a chain, which was worked with a ratchet, breaking. While the plaintiff was working the ratchet, a noise was heard, made by the chain. The work was stopped, again the same noise was heard, and the ratchet again stopped; when the defendant inquired "What is the matter?" and was answered, "The chain is going to break;" when the defendant assured them there was no danger, and told them to "go ahead on the chain," when they did so, and it broke, and the plaintiff was injured. Held, when he saw the men were fearing the chain would break, it was his duty, before ordering them to proceed, to have examined the chain, to see if it was safe,--if there were any defect in it; if he could discover none by the use of proper care and caution, then he would have been justified in ordering the men to proceed and, if the chain broke, he would not be liable in damages.

But as he did not then examine the chain, his responsibility depends upon whether a subsequent examination of the chain would have disclosed defects which ought to have been known to the defendant, and which, by proper care and caution in an examination, he could have discovered; and, if such examination would have disclosed such defects, he is responsible; otherwise he is not; but whether, upon such examination, the defect in the chain could have been discovered, the burden of proving this is on the plaintiff or defendant, the court is equally divided.

Error to circuit court, Kanawha county; F. A. GUTHRIE, Judge.

E. B. Knight and W. S. Laidley, for plaintiff in error.

Sam D Littlepage and Kennedy & Littlepage, for defendant in error.

JOHNSON, P.

This is an action of trespass on the case, brought in September, 1886, in the circuit court of Kanawha county, by Callahill Hoffman against J. Q. Dickinson, to recover damages for the negligence, of the said Dickinson in not having good and safe machinery and appliances for the work of putting together a salt-well frame, by which negligence the plaintiff was injured. The writ named the plaintiff as "Callahan" Hoffman, and in the declaration he is named as "Callahill" Hoffman. The defendant pleaded in abatement the variance between the writ and declaration, which plea was rejected, and the defendant excepted. The defendant demurred to the declaration, and each count thereof, which demurrer was overruled. The defendant pleaded not guilty, and the issue was tried by a jury, and verdict for $1,500 rendered for the plaintiff, which verdict the defendant moved to set aside, and for a new trial, which motion the court overruled, and entered judgment on the verdict. There are two bills of exceptions in the record, one to the rejection of the plea, and the other, which certifies the evidence and facts, to the instructions given for the plaintiff, and the overruling the motion for a new trial. To the judgment the defendant obtained a writ of error, with supersedeas.

The plea was properly rejected. Section 14 of chapter 125 of the Code of 1887 provides that "no plea in abatement for a misnomer shall be allowed in any action; but in a case wherein, but for this section, a misnomer would have been pleadable in abatement, the declaration and summons may, on the motion of either party, and on the affidavit of the right name, be amended by inserting the same therein."

It is also alleged as error that the court overruled the demurrer to the declaration-- First, because the first count does not specify the amount of damages claimed; and, second, because the declaration fails to allege that the machinery alleged to have been weak, unsafe, and unsuitable, which was provided for the plaintiff's use by the defendant, was so defective that the defendant must have known it, or that he did know of the defects, or that his manager knew thereof; nor does it appear from any allegation of said declaration that the plaintiff did not have notice or knowledge of such defects;" that, "in actions by an employee for negligence causing injury from defective machinery, it is essential to allege knowledge thereof on the part of the master, and want of it on the part of the servant."

The first objection has been disposed of by this court in Postlewaite v. Wise, 17 W.Va. 1, where it was decided that if a declaration contained several counts, and no damages are claimed at the end of each count, but the entire declaration concludes, "In all to the damage of the plaintiff $500, and therefor they sue," that this claim of damages must be regarded as on account of the wrongs named in each several count, and therefore a verdict and judgment may on such a declaration be rendered for damages. On this point, GREEN, J., for the court, said, (page 24:) "Again, it is claimed that it was error to render any judgment for damages, as none were named in the first and second counts, on which alone the plaintiffs did or could recover. The damages claimed at the end of the declaration applied to each of the counts. It is both unusual and unnecessary to insert the claim for damages at the end of each count. Damages for all the causes of action in the several counts may be claimed at the end of the declaration." It is true, Judge GREEN further says: "That this was intended to be done, and was done in this case, appears from the force of the declaration;" but because the words were used in that declaration, "in all to the damages," etc., does not change the general principle, that it is sufficient to claim the damages at the end of the declaration, or, as done in the declaration here, "to the damage of the plaintiff $10,000, and therefor he brings suit."

As to the second objection, the question is just as well settled in this state. In Snyder v. Railway Co., 11 W.Va. 14, it was held that it was not necessary for the plaintiffs to aver in the declaration that they were not guilty of negligence which contributed to the burning of their property; or, in other words, that they were not guilty of contributory negligence; that contributory negligence is a defense, upon which, in a proper case, the defendant may rely. In Sheff v. Huntington, 16 W.Va. 307, it was held that the burden of proving contributory negligence is on the defendant, and the authorities for and against the proposition are there collected. Pages 315, 316. The declaration in the case of Berns v. Coal Co., 27 W.Va. 285 did not allege knowledge on the part of the defendant, and ignorance on the part of the plaintiff, as to the unfitness of the appliances, and the improper ventilation of the mine; and the court...