Long v. Babcock Lumber & Boom Co

• Decision Date: 05 February 1924
• Docket Number: (C. C. No. 270.)
• Citation: 121 S.E. 494
• Court: West Virginia Supreme Court
• Parties: LONG. v. BABCOCK LUMBER & BOOM CO.

121 S.E. 494

LONG.

v.BABCOCK LUMBER & BOOM CO.

(C. C. No. 270.)

Supreme Court of Appeals of West Virginia.

Feb. 5, 1924.

(Syllabus by the Court.)

Case Certified from Circuit Court, Tucker County.

Action by Sarah Long, administratrix, against the Babcock Lumber & Boom Company. A demurrer to the declaration was overruled, and questions certified. Affirmed.

D. E. Cuppett, of Thomas, for plaintiff.

R. D. Heironimus, of Davis, and Spears & Irons, of Elkins, for defendant.

McGINNIS, J. This is an action of damages brought by the administratrix of the estate of Shrader Wilfong, who died from ptomaine poisoning with which he was stricken while in the employment of the defendant as laborer in the woods near Davis, W. Va.

The trial court overruled defendant's demurrer to the declaration and has certified to us the questions arising on its ruling thereon.

The declaration alleges that the defendant was engaged in the business of manufacturing lumber and by-products thereof at the town of Davis, at which place was located its manufacturing plant, office, and headquarters; that, in connection with the operation of its sawmills, the defendant owned and operated certain railroads and log roads used in carrying its employees to and from work, and to and from its woods camps, and in hauling logs from its forests to its mills to be manufactured into lumber at Davis, W. Va.; that the defendant had working for it, and employed by it, a large number of employees; that on the—— day of December, 1922, plaintiff's decedent, Shrader Wilfong, was employed as a laborer in its woods at a

distance of —— miles from Davis; that there was a railroad of defendant company running from the said town of Davis to the place where said Wilfong was employed and working, over which said defendant ran daily trains; that said defendant company, at the time aforesaid, had an oral contract with its employees, including Shrader Wilfong, whereby and in consideration of which said defendant collected and deducted from the pay of said Wilfong, as well as its other employees, the sum of $1.50 per month, and in consideration of which the defendant undertook and agreed to furnish said Wilfong medical attention and care, and hospital service while in the employ of said company; that such contract was in existence on —— day of December, 1922; that under and by virtue of the provisions of said contract it became and was the duty of said defendant to furnish said Wilfong, when sick or injured, promptly and without unnecessary delay, reasonably skillful medical care and attention and hospital service, and to secure the same for him as soon as possible after sickness or injury; that said Shrader Wilfong, while in the hire and employ of said defendant, and while actually at work for it, and while said contract for such service was in force and effect, on the 28th day of December, 1922, about 9 a. n;_v was taken suddenly and violently ill, and pitched forward on the ground, and was unable to rise or take care of himself; that said sickness was ptomaine poisoning; that the only attention or care given him was that he was taken to a caboose attached to an engine of said defendant near where Wilfong was taken ill; that Wilfong continued to grow worse, and was unable to help himself or move from where he was taken; that defendant, though requested to do so by said Wilfong and other employees of defendant, through and by its superintendent and superior of said Wilfong, refused to permit said Wilfong to be taken to Davis to the hospital where its employees were treat ed, or to send for a doctor for him; that said Wilfong was negligently and carelessly and maliciously left there until 6 p. m. of said day without any medical attention; that during all of this time the poison and toxin from said illness so permeated his system that, when he was finally taken to the hospistal at Davis, his condition was such that medical aid was of...