Mangus v. Proctor-Eagle Coal Co.
| Citation | 87 W.Va. 718 |
| Decision Date | 15 February 1921 |
| Docket Number | No. 4164.,4164. |
| Court | Supreme Court of West Virginia |
| Parties | Herbert Mangus v. Proctor-Eagle Coal Company. |
By virtue of the interpretation provision of ch. 15-h of the Code, ch. 10 of the Acts of 1915, it being sec. 36-e (4) of said chapter of the Code of 1918 and sec. 85 of said chapter of the Acts of 1915, the word "mine" in sec. 24 of ch. 15-h, Code, inhibiting the employment of boys under fourteen years of age ih any coal mine, extends to and includes an incline plane on which coal cars from the mining excavation, or under-ground mining operations, are drawn up to the tipple; wherefore the employment of a boy under said age in work on such incline plane, is unlawful, (p. 719).
legally Employed in Mine.
In such case, neither the employer nor the employee can have the benefit of the Workmen's Compensation Act, ch. 15-p, Code. (p. 721).
Facie Evidence of Negligence.
Injury of the employee in the course of his employment, in such case, makes out a prima facie case of injury to him by negligence on the part of the employer, (p. 722).
Error to Circuit Court, Logan County.
Action by Herbert Mangus against the Proctor-Eagle Coal Company to recover for personal injuries. Verdict for plaintiff, and from an order setting the verdict aside, he brings error.
Reversed and rendered.
D. B. Daugherty and Lilly & Shrewsbury, for plaintiff in error.
E. L. Hogseii and Chafin & Estep, for defendant in error. Poffenbarger, Judge:
This writ of error brings here for review an order setting aside a verdict for $3,000.00, returned in an action for a personal injury, based upon the theory of an unlawful employment of the plaintiff, an infant under fourteen years of age, and consequent denial of the benefit of the Workmen's Compensation Act, to the defendant, a coal mining corporation and a subscriber and contributor to the Workmen's Compensation Fund, at the time of the employment and injury.
The injury consisted of a fracture of one of the plaintiff's legs, below the knee, and it occurred outside of the mine, if the term "mine" is limited to the excavation from which the coal is taken, including the entries, rooms, haulways, etc. The plaintiff had been employed as a water carrier for the men working on and about the tipple and as a sort of "jim-hand." He was hurt while engaged in the hooking of loaded coal cars to a rope or cable by which they were drawn upon the tipple. The cars were drawn from the mine by an electric motor and thrown on the track leading up the incline, to the tipple, by means of a "flying switch." While the plaintiff was attaching cars on the incline, others were thrown on to the track behind them, and they pushed the standing cars forward, with the result that his leg was caught by the wheels and broken as aforesaid.
Evidence of the plaintiff to the effect that he had "trapped" inside of the mine, for a day or two, a few days before he was hurt, was excluded by the court. Exclusion thereof was made the ground of an exception, but it is not relied upon in argument nor made the basis of an assignment of error. As we have it now, the controversy turns upon the legal question, whether the plaintiff was, at the time of his injury unlawfully employed in a coal mine, within the meaning of the statute inhibiting employment of any boy "under fourteen years of age * * * in any coal mine." Code, ch. 15H, sec. 24. Being of the opinion that he was not and that his rights and remedies in the premises were given, prescribed and governed exclusively by the Workmen's Compensaton Act, the court set aside the verdict.
In a very carefully considered decision, the statute has been construed as not inhibiting employment of boys, to do work for a mine operator on the outside of his excavations, such as the carrying of water, drying of sand and labor on a fill or on a bone table. Daniels v. Fuel Company, 79 W. Va. 255, following the rule of strict construction applied in Rhodes v. J. B. Coal Co., 79 W. Va. 71. Since the cause of action involved in that case arose, however, chapter 15H of the Code has been amended in a way that may change the meaning of the phrase "in any coal mine/' By chapter 10 of the Acts of 1915, said chapter of the Code was completely revised, amended, and reenacted, and the new matter incorporated in it includes a definition of the word "mine," reading as follows: "In this act the term 'mine' includes the shafts, slopes, drifts or incline planes connected with excavations penetrating the coal stratum or strata, which excavations are ventilated by one general air current or divisions thereof, and connected by one general system of mine railroads over which coal may be delivered to one or more points outside the mine, when such is operated by one operator." Acts, 1915, ch. 10, sec. 85; Code, 1918, ch. 15H, sec. 36e (4).
The word "act" in the portion of said section just quoted, means ch. 10 of the Acts of 1915, now ch, 15H of the Code of 1918, because said chapter 10, completely revising, amending and re-enacting said chapter of the...
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