Knight v. Cooper et al.
| Decision Date | 19 March 1892 |
| Citation | 36 W.Va. 232 |
| Court | West Virginia Supreme Court |
| Parties | Knight v. Cooper et al. |
When a servant enters into the employment of a master he assumes all the ordinary hazards incident to the employment, whether the employment be dangerous or otherwise.
The test of liability is the negligence of the master, not the danger of the employment, though the danger of the employment may help to determine the ordinary care recmired in the case.
The mere fact of injury received by the servant raises no presumption of negligence on the part of the master.
When a servant willfully encounters dangers which are known to him, the master is not responsible for an injury occasioned thereby.
A servant having knowledge of danger about him must use diligence and care in protecting himself from harm.
G. Damages Master and Servant Negligence.
A servant can not recover if his injury was the direct result of his own disobedience of orders.
7. Damages Master and Servant Negligence.
When there is no evidence tending in any fairly appreciable degree to make out the plaintiff's case, the court on motion should instruct the jury to find for the defendant, first giving plaintiff an opportunity to suffer a nonsuit if he desires to do so.
Johnston § Hale for plaintiffs in error cited 34 W. Va. 501; 27 W. Va. 285; Beach Con. iSTeg. § 139; 33 W. Va! 135; 29 W. Va. 98; 84 Va. 642; 11 W. Va. 17; 28 W. Va. 732; 76 Pa. St. 389; 20 Minn. 9; 76 Me. 488; 103 la. 305; 68 Ga. 699; 117 IT. S. 621; 12 Lea 386; 31 W. Va. 117; 84 Va. 642: 68 Me. 49.
Henritze Sf Keller for plaintiffs in error cited 34 "W. Va. 500; 1 Law. Eights, Rem. & Prac. 311-313; 31 W. Va. 143; 122U.-S. 189; 27 W. Va. 285; 33 W. Va. 135; 84 va. 612; 29 W. Va. 98; 128 IT. S. 91; 1 Shear. & Red. Neg. (4th. Ed.) § 207, and n.; Id. 203; 39 Ark. 17; 2 Greenl. Ev. (14th. Ed.).§ 251; Acts 1891, chap. 100.
0. Johnson for defendants in error cited 27 W. Va. 285; 35 W. Va. 389; 31 W. Ya. 142; 1 L. R, A. 819; 111 IT. S. 549; 116 U. S. 529; 6 Pet. 629; 21 How. 88; 1 Black 533; 7 Wall. 565; 8 Wall. 27; 10 Wall. 91; 13 Wall. 270; 14 Wall. 120; 19 Wall. 433; 91 IT. S. 596; 93 IT. S. 291; 96 XL S. 693; 105 IT. S. 52; 113 U. S. 594; 6 W. Va. 110; 16 W. Va. 307; 21 W. Va. 709; Id. 741; Id. 486; 30 W. Va. 27; 12 W. Va 116; 21 W. Va. 704; 23 W. Va. 229.
On the 27th June, 1889, M. S. Knight was working as a miner in the coal mine of defendants, John Cooper & Co., in Mercer county, when he was hurt by a fall of slate. For this he brought suit trespass on the case against John Cooper & Co., in the Circuit Court of Mercer County, charging the injury as the result of their negligence. The issue was made up by the plea of "not guilty," and was tried by a jury on July 1, 1890. The jury brought in a verdict for plaintiff, assessing his damages at one thousand, six hundred and twenty five dollars. This the court set aside, and awarded a new trial. The issue was again tried by another jury on the 18th of March, 1891, again resulting in a verdict for plaintiff; this time for one thousand and seven hundred dollars damages. Again the defendants on various grounds moved the court to set aside the verdict and grant them a new trial. This time the court refused, and gave judgment for the damages found; and the case is now here for review on writ of error allowed defendants.
Plaintiff's declaration need not be given. It is sufficient, and the demurrer thereto was properly overruled. The governing facts, undisputed, and the ruling principles of law, well settled, are as follows: Plaintiff at his own repeated solicitation was given employment as a miner in that part of the work called "robbing the pillars," well known to him and to all miners to he the most dangerous kind of mining, the pressure and squeeze upon the pillars causing the "working" and falling of slate from the roof; hut at the same time it is the easiest and especially the most profitable kind.
"When a servant enters into the employment of a master he assumes all the ordinary risks incident to the employment, whether the employment be dangerous or otherwise." Berns v. Coal Co., 27 W. Va. 285; Davis v. Coke Co., 35 W. Va. 500 (12 S. E. Rep. 539); Tattle v. Railroad Co., 122 IT. S. 189 (7 Sup. Ct. Rep. 1166.)
Plaintiff himself was well aware of the danger. He saw the fallen and falling slate. Moreover, the danger was pointed out to him, and he was warned and cautioned specially as well as required by the rule of the mine, which he knew, not to continue work, but to report it, and suspend work until props should be put up and the mine made safe hy those who had that branch of the mining specially in charge. Plaintiff saw the fallen slate, and the "working" dripping slate overhead, ready at any moment also to fall. He reported it. The props were sent for at once, and were on their way arrived in 10 minutes; but he, while they were coming, again went to work under the dangerous spot in the roof, when some slate fell on him, injuring him seriously, breaking his arm in two places.
"A laborer having knowledge of danger about him must use diligence and care in protecting himself from harm." District of Columbia v. McElliott, 117 IT. S. 621 (6 Sup. Ct. Rep. 884). "When a servant willfully encounters dangers which have been pointed out to him, and does not avail himself of the rules and regulations, which the master has provided to avoid and avert such danger, the master is not responsible for an injury occasioned thereby." Davis v. Coke Co., 34 W. Va. 500 (12 S. E. Rep. 539). "If a servant willfully encounters dangers which are known to him, or are notorious, the master is not reponsible for an injury occasioned thereby." Berns v. Coal Co., 27 W. Va. 285; Humphreys v. Newport News $ M. V. Co., 33 W. Va. 135 (10 S. E. Rep. 39).
What was the evidence of negligence on the part of defendants? The mining boss was a man of twenty two years' experience as a practical coal miner. He refused to permit plaintiff to work at this dangerous part of the mining until he got another experienced miner to work with him, instructed him as to the rules of mining the pillars, among them the following: That when he saw the slate overhead working or falling, he was to stop work at that place, and report to him. The props were ready when called for, and men were employed whose sole business it w'as today track, bring props and put them up before any more work was done in that place. So that, instead of negligence on the part of defendants being shown by the testimony of any witness, the uncontrovertible evidence shows that the defendants had skilled and careful supervisors; had at hand the necessary appliances to make the roof safe and workmen whose business it was to put them up; and that the master provided generally for the safety of the servant, as far as could reasonably be expected, or "required under the circumstances." Berns v. Coal Co., 27 W. Va. 285.
To give plaintiff damages in such a case would in effect make defendants liable as insurers of the miner from all accidents in any event, even though he should rashly expose himself to well-known danger. This is not the law, nor is it common fairness. To say that "robbing pillars" is dangerous, is only to say what all miners know, what plaintiff knew when he sought as a favor, and by preference obtained, work at this branch of the business, on account of its greater ease and greater profit, notwithstanding its greater danger.
But this is not the test of defendants' liability. Negligence of defendants is the one thing essential, and this is carefully and explicitly averred in plaintiff's declaration. But it must be proved as well as alleged in this class of cases and the mere fact of injury received raises no presumption of...
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