Johnson v. Ches. & Ohio R'y Co.
| Decision Date | 06 February 1892 |
| Citation | 36 W.Va. 73 |
| Court | West Virginia Supreme Court |
| Parties | Johnson v. Ches. & Ohio R'y Co. |
Servant.
A servant who seeks to recover for an injury which, he claims, resulted from defective machinery or appliances furnished by the master to be used about the business in which such servant was employed, takes upon himself the burden of establishiug negligence on the part of the master, and due care on his own part; and, in order to entitle him to recover, he must overcome two presumptions: first, that the master has discharged his duty to the servant by providing suitable machinery and appliances for the business, and in keeping them in condition; second, that the servant assumed all of the usual and ordinary hazards of the business.
Servant.
Such servant takes upon himself the burden of showing that the master had notice of the detect complained of, or that, by the exercise of the ordinary care which he is bound to observe, he would have known of it, and that the servant was ignorant of such defect and had not equal means of knowledge.
Servant.
From the mere fact that an injury results to a servant from a latent defect in the machinery or appliances of the business, no presumption of negligence on the master's part is raised. There must be evidence of negligence connecting him with the injury. The mere fact that machinery proves defective, and that an injury results therefrom, does not fix the; master's liability.
Servant.
Where an injury occurs to an employe of a railway company through a defect in the machinery or implements furnished to the employes by the company, knowledge of such defect must be brought home to the company, or it must be proved that the company was ignorant of the same through its own negligence or want of care, before the company can be made liable.
Servant.
It is the duty of such railroad company to guard its employes from injuries resulting from unsound, unsafe and defective engines, cars and appliances by having the same continuously inspected by persons competent to perform that duty; and the negligence of such inspector in the discharge of this duty is the negligence of the company.
. Simms § Endow for plaintiff in error cited 33 W. Va. 135; 24 W. Va. 37; 29 Conn. 548; 41 Barb. 366; 26 Barb. 39; 24 K Y. 10; 64 K Y. 5; 110 Mass. 23; 137 Mass. 243; 61 Ill. 162; 68 Ill. 545; 61 Mo. 520; 32 Mich. 411; 25 Ala. 659; 44 Pa. St. 375; Black Pr. & PI. 10 (n. 1); Id. 28, 29; Thomp. Neg. 1053, § 48, 1054 (n. 4); 27 W. Ya. 285; 33 Kan. 660; 61 la. 714, 715; 77 111. 365.
Gibson § Michie for defendant in error cited 33 W. Va. p't 5 SylL; 24 W. Va. 37; 5 L. R. A. 750; 41 Am. & Eng. R'd Cas. 259; 44 Id. 523; 38 Id. 157; 17 Id. 583; 11 Id. 193.
On the 3d day of May, 1890, E. E. Johnson brought an action of trespass on the case in the Circuit Court of Cabell county against the Chesapeake & Ohio Railway Company; and in his declaration he alleged that on the 16th day of January, 1890, he was in the service of the said defendant as a brakeman, whose duty to the said defendant required him to couple and to uncouple the said railway cars used, operated and controlled by the said defendant in and about its yard at the city of Huntington, in the said county of Cabell, of all of which the said defendant then and there had notice; and it then and there became and was the duty of said defendant to use all due, reasonable, and proper means, care, and diligence to avoid and prevent accidents, dangers, and injuries to the said plaintiff while in its service as yard-brakeman, as aforesaid, and to furnish and provide safe, sound and suitable railway cars, machinery, apparatus and appliances to be used by the said plaintiff in and about said service to the said defendant, yet the said defendant, not regarding its duty in that behalf, would not and did not use due, reasonable and proper means, care and diligence, nor any means, care and diligence whatsoever, to avoid and prevent accidents, dangers and injuries to the said plaintiff while in its service as aforesaid, and would not and did not furnish and provide safe, sound and suitable railway cars, machinery, apparatus and appliances to be used by the said plaintiff in and about his said service to the said defendant, but wholly failed, neglected and refused so to do, in this, to wit, that the said defendent, on the day and year last aforesaid, at the said Cabell county, wrongfully, willfully, negligently and injuriously suffered and permitted one of its freight-cars, to wit, freight-car No. 2616, to be, to become and to remain defective and out of repair in this, to wit, that on the day and year last aforesaid, in said Cabell county, the said defendant wrongfully, willfully, negligently and injuriously suffered and permitted the spring in the draw-head of said freight-car No. 2616 to be, to become and to remain short, weak, and defective, and a large hole to become and to remain worn in the dead-block of the said freight-car whereby, on the day and year last aforesaid, at the said Cabell county, while the said plaintiff was in the service of the said defendant as a yard-brakeman, as aforesaid, the said plaintiff was required by the said defendant to uncouple the said freight-car No. 2616 from a certain other freight-car, which said freight-cars were then and there on the main track of said defendant's railway, about four hundred yards east of the passenger depot of the said defendant at the said city of Huntington, and it then and there became and was necessary for the said plaintiff, in order to uncouple the said car No. 2616 from the said other freight-car, to take in one of his hands the pin which coupled together the said cars, and raise the said pin with his said hand; and while the said plaintiff was so engaged in uncoupling the said freight-cars, as aforesaid, without any default or negligence on the part of the said plaintiff, and without any knowledge on his part that the said spring in the draw-head of the said car No. 2616 was short and weak and defective, and that the said large hole was worn in the dead-block of the said car, the said defendant then and there, at said Cabell county, on the said 16th day of January, 1890, wrongfully, willfully, negligently and injuriously and suddenly and with great force and violence, drove and caused to be driven, and impelled and caused to be impelled, the two said freight-cars, which the said plaintiff was endeavoring to uncouple, as aforesaid, together, and against each other, whereby and by means of the premises the said plaintiff was then and there, to wit, on the day and year last aforesaid, at the said county of Cabell, severely mashed, bruised, wounded, and injured, and had his left hand mangled and crushed, wmereby said plaintiff lost three lingers and the greater part of his said left hand, and suffered great physical pain and mental anguish, and was permanently injured and crippled, and has lost much valuable time, to wit, hereto, and will always be partially disabled from active labor and exertion; wherefore, and by means of the premises, and of the wrong, grievances, and injuries hereinbefore mentioned, the said plaintiff has sustained damages to the amount of twelve thousand dollars etc.
To this declaration a demurrer was interposed, which was considered by the court and overruled; and it is assigned as one of the errors relied on by the plaintiff in error, because said declaration was neither signed by the party nor his counsel, it being signed But as this objection to the declaration does not appear to be insisted on by counsel for the plaintiff in error in their brief, and no other ground of demurrer is assigned, and we see no valid objection to the declaration, we must conclude that this ground of demurrer was assigned more by way of "abundant caution" than because it was seriously relied upon, and that the court committed no error in overruling the same.
Upon the plea of not guilty the case was submitted to a jury on the 10th day of December, 1890, who returned a verdict of three thousand five hundred dollars for the plaintiff; and thereupon the defendant, by its attorney, moved the court to set aside the verdict on the ground that it was contrary to the law, and the evidence, which motion was overruled, and a judgment was rendered against the, defendant on said verdict. A bill of exceptions was taken in the cause, seting forth the testimony, and showing that the defendant moved to take from the jury all of the plaintiff's evidence, because the same was insufficient to maintain any verdict for him, which motion was overruled, and the court refused to take the plaintiff's evidence from the jury, to which ruling the defendant excepted; and from said rulings and judgment of the court the defendant obtained this writ of error.
The second error relied on by the defendant is that "the court erred in refusing to strike out all the plaintiff's evidence from the jury, because the same was insufficient to maintain any verdict for the plaintiff, as the evidence totally fails to show that the defendant knew that the car wras defective, or that it had been so long out of repair that it should have known it."
In considering this assignment of error the question presented is whether the plaintiff, by the evidence adduced in his behalf, had shown such a state of facts as entitled him to a verdict against the defendant when he rested his case. The claim asserted in the plaintiff's declaration is that his injury resulted from the use on the part of the defendant of a short, wTeak, and defective spring in the draw-head of car No. 2616, and from the further alleged fact that there...
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Johnson v. Chesapeake & O. By. Co
... ... E. Johnson against the Chesapeake & Ohio Railway Company to recover for personal injuries. Verdict and judgment for plaintiff. Motion to set aside the verdict denied. Defendant brings error ... ...