Honaker v. New River & Pocahon Tas Consol. Coal Co

• Decision Date: 22 October 1912
• Citation: 76 S.E. 180,71 W.Va. 177
• Court: West Virginia Supreme Court
• Parties: HONAKER. v. NEW RIVER & POCAHON TAS CONSOL. COAL CO.

76 S.E. 180

71 W.Va. 177

HONAKER.

v.NEW RIVER & POCAHON TAS CONSOL. COAL CO.

Supreme Court of Appeals of West Virginia.

Oct. 22, 1912.

(Syllabus by the Court.)

Master and Servant (§ 228^*): —Injuries to Servant—Infants — Contributory Negligence.

Employment of a boy under 14 years of age to work in a coal mine is prima facie actionable negligence in the master, and will call for damages in case of injury to the boy while in service, and exempt him from the defense of contributory negligence, unless it be shown he had experience, intelligence, care, and capacity, notwithstanding his age, to enable him to appreciate and avoid the dangers of service.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.*]

^*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Error to Circuit Court, Fayette County.

Action by Sam Honaker against the New River & Pocahontas Consolidated Coal Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Dillon & Nuckolls, of Fayetteville, for plaintiff in error.

Littlepage, Cato & Bledsoe, of Charleston, and Hubard & Lee, of Fayetteville, for defendant in error.

BRANNON, P. Sam Honaker brought an action against the New River & Pocahontas Consolidated Coal Company for personal injury, and recovered $1,000 damages. Honaker was a boy 12 years and 10 months old at the time he received his injury. The defendant was operating a coal mine, and Honaker was employed by it in "trapping" and "pig-tailing." His work in trapping was to open doors in the mine to let pass the motor engine hauling in and out of the mine coal cars. His duty in pig-tailing was to connect rope, from winder on the motor, with coal cars to be hauled out of the mine. A motor was pushing into the mine four empty coal cars. Honker was seated on the end of the fourth car from the motor, with his feet on the bumper. There were some empty cars ahead on the track in the mine, and the cars being pushed collided with them. Honaker discovered them some 7 feet ahead, and tried to get back into the car, and in doing so one of his feet slipped, and was caught between the bumpers of the cars, and was mashed. The plaintiff gave evidence that on the day of his injury the brakeman was absent, and he was ordered by the mine foreman to act as brakeman.

Complaint is made that the court refused an instruction, saying that if Honaker had been instructed by the mine foreman not to ride on the mine cars, and that he disobeyed the instructions, and did ride in the mine on the front car of a number that were being pushed into the mine, contrary to instructions, and that the injury was occasioned thereby, the jury should find for the defendant. This instruction ignores the fact that Honaker was under 14 years of age. It does not put to the jury to say whether that fact entered into the case. The instruction proposes to defeat the plaintiff on the...