Laverty v. Hambrick

• Decision Date: 27 April 1907
• Citation: 57 S.E. 240,61 W.Va. 687
• Parties: LAVERTY v. HAMBRICK.
• Court: West Virginia Supreme Court

57 S.E. 240

61 W.Va. 687

LAVERTY v. HAMBRICK.

Supreme Court of Appeals of West Virginia.

April 27, 1907

Submitted March 5, 1907.

Syllabus by the Court.

A minor, as a servant or employé, assumes the risk of all dangers, incident to the work or business in which he is engaged, that are known to, and fully appreciated by, him.

By entering upon, and continuing in, service in an unsafe place, the dangers of which are known and fully appreciated by him, a servant waives the performance by the master of the duty imposed upon him by law in respect to the safety of the place in which the service is performed.

Error to Circuit Court, Cabell County.

Action by B. H. Laverty, who sues by his next friend, against J. W Hambrick. Judgment for plaintiff. Defendant brings error. Reversed, and judgment rendered for defendant.

Brown Jackson & Knight, for plaintiff in error.

POFFENBARGER J.

For injuries to his hand, suffered while operating a small circular saw in a keg factory, B. H. Laverty obtained a judgment, in the circuit court of Cabell county, against J W. Hambrick, for $3,000, to which Hambrick obtained a writ of error. It was rendered on a demurrer to the evidence, and the error assigned goes to the action of the court in overruling the demurrer and rendering judgment.

Laverty was a minor, about 14 1/2 years old, but had been working in the factory for six months or more, during half of which time he had operated the machine by which he was hurt. The only defect in the machine, of which complaint is made, if it be a defect, was the shortness of a leather strap which controlled the little carriage by which the wood, a stave 18 or 19 inches long, was fed to the saw, in respect to the distance to which it could be pulled back, toward the operator in advance of the saw, for the reception of a new stave, or one which had passed the saw and thus become trimmed on one side for the like operation on the other side, after having been turned. Plaintiff claims the stave upon the carriage, when it was so pulled back, should have cleared the saw by two or three inches; but, owing to the shortness of this inelastic leather strap. it could be pulled far enough to allow the stave to clear the saw by only about one-half of an inch. As the running of the machine would jar the carriage, this distance between it and the saw was so short that the jarring of the machine would sometimes cause the saw to take hold of the stave before the operator was ready. The carriage did not work automatically, but had to be pushed by the operator. After pushing the carriage through and so turning one side of the stave, the operator, while pulling the carriage back with one hand, turned the stave with the other. The testimony does not show that the shortness of the strap or the jarring of the carriage caused the injury or in any way contributed thereto. The plaintiff, by his own testimony, shows that the cause of the injury was the slipping of one or both of his feet while starting to push the carriage to the saw, after having turned the stave and replaced it on the carriage. The cause of his slipping, he says, was the accumulation of sawdust, edgings, and trash from his machine in the place in which he stood. This accumulation was, according to his testimony, from six inches to a foot deep, and the practice was to clean it out at the end of the week on Saturday evenings. When it had been cleaned out, he did not know; but he was hurt on a certain Tuesday morning. After having said repeatedly that this accumulation of trash "was the biggest part" of the cause of his injury, he finally stated, on cross-examination, that he had slipped when he got hurt, and, then, that the stuff under his feet had been the immediate cause of his injury. The question was put to him directly in this form: "Q. Now, then, it was the stuff under your feet that is the immediate cause of your injury? A. Yes, sir." Then follows this: "Q. And it wasn't the shortness of the strap at all? It was simply the stuff under your feet that caused your injury? A. The strap was dangerous. Q. I say it might have been dangerous, but, however, it was the stuff under your feet that caused you to slip? A. Yes, sir; that slipped me. Q. That is what caused you to slip? That is what made you slip? A. Yes, sir." The following is additional testimony to the same effect: "Q. Now, Harrison, you say it was the stuff under your feet that caused you to be injured, that you slipped. Now, what were you doing at the time you slipped? A. I had just whirled the stave and started to put it back in the saw. Q. Now, as I understand you, you say that, at the time you slipped, you had turned the stave over, and put it back on the carriage, so as to edge the other side of it? A. I started to shove it back. Q. You had edged the other side of it, and you had turned it over and started to edge the other side? A. Yes, sir. Q. Or, rather, you had turned the stave over on the carriage, for the purpose of edging the other side, and started to shove the carriage against the saw, you say? A. Yes, sir. Q. Now, how did you slip? A. My feet slipped out from under me. Q. What pressure was brought on you that caused you to slip? A. The trash and stuff under my feet. Q. You say the trash was there when you went in that morning? A. Yes, sir. Q. And that your feet slipped? A. Yes, sir." It also appears from the testimony of the plaintiff that he knew and appreciated the danger of his situation. His testimony on this point is as follows: "Q. Had that trash been there before, when you were working the saw? A. Yes, sir. Q. Had you ever slipped before? A. Yes, sir. Q. You had slipped before? A. Yes, sir. Q. Then you knew that the trash that had been allowed to accumulate under your feet would cause you to slip? A. Yes, sir; I knew it would cause me to slip. Q. ...