Jaggie v. Davis Colliery Co.
| Decision Date | 22 December 1914 |
| Citation | 75 W.Va. 370 |
| Parties | Jaggie, Adm'r. v. Davis Colliery Co. |
| Court | West Virginia Supreme Court |
It is the duty of a. mire operator to maintain his motor and motor tracks in a reasonably safe and suitable condition for the safety of his servants employed to operate the same. Sec. 24, Ch. 15H, Code 1913, does not impose upon the mine foreman the duty to see that either the motor or tracks in the mine are properly maintained and, consequently, the master is not relieved from his common law duty in respect thereto, (p. 372).
Motor tracks, although constituting a permanent part of the mine, are, nevertheless, appliances for the removal of coal therefrom, (p. 372).
Sec. 34, Ch. 1511, Code 1913, requires a mine operator to adopt, print and post rules for the government and operation of his mine, which shall embrace '' all the work pertaining thereto, in and outside of the same," and for the failure to print and post a rule regulating the number of cars that may be hauled by a motor, proximately resulting in injury to one of his servants, he is liable, (p.375).
Contradictory statements by a witness, as to material facts, are admissible in rebuttal for the purpose of weakening or destroying the value of his testimony, provided the foundation therefor has been laid by proper cross-examination, but are not admissible as primary evidence of the controverted fact. (p. 376).
The report of a district mine inspector, respecting the condition of the interior of a coal mine, is not evidence in the trial of an action for the wrongful death of an employe in the mine, caused by the alleged negligence of the mine operator, (p. 377).
Negligence is a question for the jury when it depends upon the existence of certain facts respecting which the testimony is conflicting. (p. 377).
The jury are the sole judges of the weight and value of conflicting testimony of witnesses, (p. 377).
Error to Circuit Court, Randolph County.
Action by Benjamin J. Jaggie, administrator, etc., against the Davis Colliery Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
E. A. Bowers, for plaintiff in error. H. G. Kump, for defendant in error.
Plaintiff's intestate, who was his son, was employed as motorman in defendant's coal mine, and, as he was bringing a train of loaded cars out of the mine, the motor was derailed and ran against the props at the side of the haulway sup-porting the roof, knocking some of them down and cansing loose rock and slate overhead to fall on him and kill him. Plaintiff recovered a judgment for $6,000.00 for his alleged wrongful death, and defendant was awarded this writ of error. The declaration contains eleven counts. A demurrer was interposed to it and to each separate count. The court sustained the demurrer to the third, fourth, seventh, eighth and ninth counts, and overruled it as to all the others. A number of errors are assigned. We will first consider the one relating to the overruling of the demurrer to the six remaining counts.
The first count, briefly stated, avers that it was defendant's duty to maintain a reasonably safe and suitable motor
track in its mine; that it failed to perform its duty in this respect; that the track was defective, uneven and unsafe, and by reason thereof plaintiff's intestate was killed while engaged in the regular performance of services for defendant. The overruling of the demurrer to this count presents the legal question, whether it was defendant's duty to maintain a reasonably safe and suitable track in its mine. Such was unquestionably the master's duty at the common law; it was one of the primary duties a master owed to his servant to furnish him a place and appliances, reasonably safe, in and with which to work. Motor tracks in the main haul way of a coal mine partake of the nature of both a place and an appliance. They are permanently laid in the mine and, therefore, a part of the place; and they are essential to the operation of the motor and, hence, an appliance for the removal of coal. "An appliance is anything brought into use as a means to effect some end." Honaker v. Board of Education, 42 W. Va. 174. Machinery, apparatus and premises. Collins v. Harrison, 25 R. I. 489, 56 Atl. 678; a gate on the side of the platform of a street car, Stoppers v. Interurban St. By. Co., 106 N. Y. Sup. 854; Scaffolding for workmen, Phoenix Bridge Co. v. Castleberry, 131 Fed. 175; skids laid over a trench on which iron pipes are placed, to rest there until lowered into a trench, Tamaseric v. Beck with, 129 N. Y. Sup. 361, have all been held to be appliances. "Appliances of transportation" include the road bed, tracks, cars and engines, Burns v. Penna, R. R. Co., 233 Pa. 304. 82 Atl. 246.
But the principal question with which we are confronted in this case is, does the statute requiring-a mine operator to employ a mine foreman, and prescribing the mine foreman's duties, relieve the operator from his common law duty to maintain a reasonably safe and suitable track', after he has employed a mine foreman? It is settled by previous decisions that sec. 24, ch. 15H, serial sec. 483, Code 1913, defining the mine foreman's duties, discharges the master from liability to his servant for injury resulting from failure to do any of those things which are enjoined upon the mine foreman, provided the mine owner or operator has used reasonable diligence to procure a suitable mine foreman. If he has done his duty in this respect, the mine foreman is then held to occupy the relation of fellow-sesvant, and not of vice-principal or agent of the master, to every other employee in the mine, in respect to those things expressly given in his charge by the statute. Williams v. Thacker Coal & Coke Co., 44 W. Va. 599; McMillan v. Coal Co., 61 W. Va. 531; Squilache v. Coal & Coke Co., 64 W. Va. 337; Br alley v. Coal & Coke Co.. 66 W. Va. 278; Peterson v. Paint Creek Collieries Co., 71 W. Va. 334; and Helliel v. Piney Coal & Coke Co., 70 W. Va. 45. The statute says the mine foreman shall "keep a careful watch over the ventilating apparatus and the airways, traveling ways, pumps and drainage." This direction is general. In other parts of the section his duties with respect to these things are specifically set forth. Respecting the traveling ways and ventilation, he is required to see that proper break-throughs are made or that brattice is used; that no loose coal, slate or rock is hanging overhead or along the haulways; that sufficient props, caps and timbers are furnished to the miners in their respective places of work; that the wrater is drained out of the working places and they are kept dry, as near as practicable, while the miners are at work; that recesses are made not less than one hundred feet apart along the haulways, between the wagon and the ribs, for a refuge place for the men; and, on all haulways, where hauling is done by machinery of any kind, he is required to provide a proper system of signals and a conspicuous light, and to see that such conspicuous light is carried on the front and rear of every trip of cars when in motion in a mine. A num-ber of other duties of the mine foreman are specifically named in the statute. But nowhere in it is he expressly given supervision of the motor tracks and required to see that they are maintained in a safe and suitable condition; nor de we think it can be fairly implied from the language of the statute that the legislature meant to impose that particular duty upon the mine foreman. To lay a track properly requires engineering skill, skill that a mine foreman, possessing all the requisites prescribed by the statute for his qualification as a mine boss, is not presumed to have. By defining the mine foreman's duties with such great particularity and omitting to mention the supervision of the motor tracks as one of them, although it is evident the legislature had in mind the removal, of coal by electric motors, for it required the foreman to provide a system of lights and signals on haulways where hauling was done by machinery, evinces a clear legislative purpose not to include the care of the tracks as a part of his duties. Supervision of the tracks is not a duty to be implied; it is not essential to the complete performance of any of the acts expressly required of the mine foreman. By the common law the servant was given a right of action for neglect of duty proximately causing him injury, and by statute his personal representative is given such right of action in case of his death by such neglect of duty, and such rights can be taken away only when the intention of the legislature to do so clearly appears by the express language of the statute or by necessary implication. The statute, being in derogation of a common law right, is subject to the rules of strict interpretation. In Mitchell v. United States Coal & Coke Co., 67 W. Ya. 480, we held it was the master's duty to see that the insulator on the motor, protecting the wire that connected with the trolley, was kept in proper condition. In Humphreys v. Raleigh Coal & Coke Co., 73 W. Ya. 495, 80 S. E. 803, we held that the mine-foreman statute did not relieve the mine operator from "his common-law duty to exercise reasonable care to provide reasonably safe machinery, tools, and appliances for use in the mine, and make the mine a reasonably safe place for work, except in so far as the duty is devolved upon the mine foreman." In Cheeks v. Virginia-Pocahontas Coal Co., 74 "W. Ya. 553, 82 S. E. 756, we held the statute...
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