Holton v. Clayco Gas Co.

Decision Date20 November 1928
Docket Number6249.
Citation145 S.E. 637,106 W.Va. 394
CourtWest Virginia Supreme Court

Submitted November 13, 1928.

Syllabus by the Court.

A declaration in tort for personal injuries, which charges the relation of master and servant, that it was the duty of the master to provide safe roads and places in and over which to work and travel while in the employment, that this duty was breached by particular acts of the master, stated with reasonable certainty, and that the injuries, and damages laid, were caused by such negligent acts, is good on demurrer.

If the injuries charged in an action for personal injuries are occasioned by some negligent act of the master, his servant or employee, other than the plaintiff, and the master is not a subscriber to the workmen's compensation fund, he cannot interpose as a defense contributory negligence or assumption of risk on the part of the servant.

Where a pipe line company, in laying pipes on its right of way, makes a passageway over a steep, rocky embankment for the use of its employees in the discharge of their duties, and in so doing leaves a strand of barbed wire (the remains of a wire fence there standing) stretched from six to eight inches above the ground and not easily discernible, and an employee burdened with tools is tripped by the wire and thrown among the rocks, causing injuries, it is for the jury, and not for the court, to determine whether the act of leaving the barbed strand of wire as detailed constituted negligence on the part of the company, making the place of work not reasonably safe.

Additional Syllabus by Editorial Staff.

In employee's action for personal injuries, evidence relative to whether fall caused injury to hand, or whether condition was result of a boil on the back thereof held to require submission to jury.

Error to Circuit Court, Lincoln County.

Action by Joseph Holton against the Clayco Gas Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Charles Powell, Kemble White, and A. F. McCue, all of Fairmont, for plaintiff in error.

Jacob D. Smith, of Hamlin, and Lilly & Lilly, of Charleston, for defendant in error.


In this action of trespass on the case for personal injuries plaintiff, Joseph Holton, recovered a judgment of $2,000 against the defendant, Clayco Gas Company. This writ followed.

Plaintiff's amended declaration charges that the gas company, a nonsubscriber to the workmen's compensation fund, while engaged in building a gas pipe line in Lincoln county, employed the plaintiff to work for it; that it was the duty of the defendant company to provide the plaintiff safe roads and places in and over which to work and travel while so employed; that the defendant company and its agent breached this duty by negligently constructing a roadway along and about its right of way for said pipe line, through the lands of E. F. Johnson, in said county, by cutting away all the wires from a barbed wire fence, except the bottom wire, near the ground, thus leaving a partial opening through said fence across its right of way, through which its employees were required to travel to their work for the defendant company; that the said wire, tightly stretched and not cut away as aforesaid, caused a dangerous obstruction to its employees; that, while working for defendant on the Johnson farm, the plaintiff was ordered to go to a pipe line ditch on the farm of L. R. Sweetland; that pursuant to said instructions, and while burdened with the tools of his labor, the plaintiff started to walk along the right of way and through the gap in the fence, exercising due care on his part, when he caught his foot against the tight wire, which had not been cut loose from the post in the wire fence, causing him to fall violently into a pile of rock piled along the right way, whereby he received a permanent injury to his left hand and wrist, by reason of which he sustained damages of $5,000.

The court overruled the defendant's demurrer to the amended declaration, and issue was joined upon the plea of not guilty entered by the defendant, with the result hereinbefore indicated.

The first assignment of error is the failure of the court to sustain the defendant's demurrer to the amended declaration. The declaration charges the duty of defendant to plaintiff to provide plaintiff a safe place in which to do his work and to travel about over the work while thereon; the breach of that duty by negligently leaving a dangerous wire where plaintiff traveled; and the injury resulting from the negligent act. This declaration states all that is required in cases of this character. "You must aver the duty, and aver the existence or presence of negligence in its performance, and specify the act working damage, but need not detail all the evidential facts of negligence." Snyder v. Wheeling Elec. Co., 43 W.Va. 661, 28 S.E. 733, 39 L. R. A. 499, 64 Am. St. Rep. 922; Diotiollavi v. Coal Co., 98 W.Va. 116, 128 S.E. 278.

The remaining points of error can be considered under the assignment that the verdict is contrary to the law and the evidence. It will be noted that in determining this question all of the defendant's evidence in conflict with that of the plaintiff must be disregarded.

It appears from the evidence that in the summer of 1925 the defendant, Clayco Gas Company, a nonsubscriber to the workmen's compensation fund, was engaged in constructing a pipe line for the transportation of natural gas through Lincoln county. Six or several hundred men (among whom was the plaintiff) were employed on this project. A portion of this pipe line was laid upon a right of way over the Johnson farm. The place of plaintiff's fall and injury was on defendant's right of way, on a steep bank just below a county road, which crossed the pipe line right of way at right angles. The right of way, 20 feet wide, came down the hill to the public road, crossing it at about an angle of 90 degrees, thence over a steep embankment at the lower edge of the road, and then down over the bottom land, and thence on over the Johnson farm. Along the lower edge of the road was a barbed wire fence of three strands, fastened to posts and small timber, and according to defendant's evidence the two lower strands had been cut and thrown back, the upper one being raised higher in order to permit workmen and horses to pass in and out under it. On the other hand, plaintiff and some of his witnesses say that the two upper strands were cut and the lower strand remained intact.

Plaintiff (and 27 others) having been ordered to leave that particular part of the Johnson farm where he worked as a trench digger and to go to the Sweetland farm a short distance away to do further digging, says that, burdened with his tools, while hurriedly going up the steep embankment just below the road to catch up with his fellow workmen, who had already gone through, and in order to get into the road, caught his foot and pantaloons in one of the strands of the barbed wire stretched about six inches above the ground, causing him to fall among some rocks lying there, which fall resulted in permanent injury to his left hand. Another witness, perhaps two witnesses, just ahead of plaintiff, observed the fall and saw the wire. There is some conflict in the evidence as to the existence of this wire at that place when plaintiff was injured. Defendant's witnesses say that the two lower wires had been cut and thrown back, and several of them say that the six-inch sections of pipe had been "snaked" from the road down over this embankment with horses, implying from that evidence that no wire six inches above the ground could have remained there. However some of plaintiff's witnesses say that, judging from the worn places on the ground, the pipes were "snaked" over the enbankment for the work...

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