Miller v. Berkeley Limestone Co.
| Decision Date | 16 April 1912 |
| Citation | 75 S.E. 70,70 W.Va. 643 |
| Parties | MILLER v. BERKELEY LIMESTONE CO. |
| Court | West Virginia Supreme Court |
Submitted September 10, 1910.
Rehearing Denied June 15, 1912.
Syllabus by the Court.
The general rule, which obliges the master to furnish his servant a reasonably safe place in which to work, does not apply to a quarry, where the work to be done necessarily changes conditions and renders the place more or less dangerous as the work progresses.
The master is not liable to his servant, as for negligence in failing to furnish a reasonably safe place to work, for injury received in a quarry, by a stone falling upon him from the bank or cliff above, occasioned by the labor performed in operating the quarry. Such an accident was a risk assumed by the servant.
All laborers employed by a common master to work in a stone quarry, whether their duty be to drill, to shoot off blasts or to remove loose stone from the cliff, stand in relation to each other as fellow servants.
The foreman of a crew of laborers employed to work in a stone quarry, who has power to employ and discharge men and to direct their work, is, nevertheless, only a fellow servant unless his negligence relates to some nondelegable duty which the master owed to the injured servant. Whether a superior servant is a vice principal depends upon the nature of his negligent act, and not upon his grade or rank.
In the absence of the master's negligence in selecting his foreman, he is not liable for injury to a servant who was led into danger by a false assurance of safety given by the foreman, unless the negligent act of the foreman relates to the master's nondelegable duty.
Error to Circuit Court, Berkeley County.
Action by Annie C. Miller, administratrix, against the Berkeley Limestone Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Faulkner Walker & Woods, of Martinsburg, for plaintiff in error.
Marshall McCormick, of Berryville, Va., H. H. Emmert, of Martinsburg, and James F. Minor, for defendant in error.
Plaintiff's intestate, John W. H. Miller, was employed as a driller in defendant's quarry and on the 16th of July, 1907, was fatally injured by a rock falling upon him, and died shortly thereafter. This action is to recover damages for his death, which plaintiff alleges was due to defendant's negligence in not providing deceased a safe place to work. On a demurrer to plaintiff's evidence, the court rendered judgment for defendant, and plaintiff obtained this writ of error.
Counsel for plaintiff insist that the evidence was sufficient to prove negligence, and that the court erred in sustaining the demurrer thereto. But the sufficiency of the evidence to establish negligence depends upon the law relative to defendant's duty to its servant in the premises.
Defendant operated a stone quarry and employed a number of men, who worked under a foreman. Deceased had worked in the quarry for six or seven years, except in the winter season, when the work stopped. The distance from the natural surface above to the bottom of the quarry was 60 to 80 feet, and the ledge on which deceased was working at the time of the fatal accident was about 8 feet wide, and from 15 to 20 feet below the natural surface. From the ledge upward, the face of the quarry sloped at an angle of about 45 degrees. This slope was not solid rock, but was composed of clay and rock mixed. On the day of the accident deceased and his helper, one Holly, were directed by the foreman to set the drill at a certain point on the ledge, and to begin drilling. They did so, and began drilling about 1 o'clock in the afternoon, and in two or three hours thereafter a rock, weighing 300 pounds or more, which was partially imbedded in the clay some distance up the slope above the driller's head, loosened and rolled down, striking him on the head and fatally injuring him.
It is a familiar rule of law, too well recognized to merit discussion, that one of the nonassignable duties of the master is to provide his servants a reasonably safe place in which to work. But, like most other general rules, this one has its exceptions, and one is that the master is not under duty to keep the working place safe, when the very work which the servant is employed to perform changes the condition of the place, and makes it more or less dangerous, as the work advances.
As the drilling and blasting progressed, the face of the quarry underwent frequent changes, causing the working place to become more dangerous at some times than at others. Deceased knew this as well as his employer, and assumed such risks as would reasonably be expected to result from the changes in the condition of the place, and which would be brought about by the work which he was employed to perform. 2 Labatt on Master and Servant, § 588; White on Per. Inj. in Mines, § 125; Jacoby Co. v. Williams, 110 Va. 55, 65 S.E. 491; Consolidated Coal & Mining Co. v. Clay's Adm'r, 51 Ohio St. 542, 38 N.E. 610, 25 L.R.A. 848; Finalyson v. Utica Mining & Milling Co., 67 F. 507, 14 C.C.A. 492; Thompson v. California Construction Co., 148 Cal. 35, 82 P. 367; Heald v. Wallace, 109 Tenn. 346, 71 S.W. 80; Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440; City of Minneapolis v. Lundin, 58 F. 525, 7 C.C.A. 344; Gulf, etc., Ry. Co. v. Jackson, 65 F. 48, 12 C.C.A. 507; Cleveland, etc., Ry. Co. v. Brown, 73 F. 970, 20 C.C.A. 147; Fraser v. Red River Lumber Co., 45 Minn. 235, 47 N.W. 785; Durst v. Steel Co., 173 Pa. 162, 33 A. 1102; Poorman Silver Mines v. Devling, 34 Colo. 37, 81 P. 252.
Giving full credit to the testimony of plaintiff's witnesses, considering all proper inferences deducible therefrom, and disregarding all of the testimony of defendant's witnesses conflicting therewith, as we must do on considering a demurrer to the evidence, the following facts may be regarded as proved, viz.: That it was the duty of Abe Miller, a shooter, and Allie Waters, his helper, after a blast was set off and before resetting the drill, to remove the earth and loose rock that would be liable to fall and injure the workmen below; that they knew, on the day before the accident, of the presence of the rock that fatally injured plaintiff's intestate, and thought it was dangerous, but failed to remove it; that Abe Miller, knowing that he himself would not be working at the quarry on the succeeding day, told his helper, Allie Waters, to remove the stone before the drill was set on the ledge below it on the next day; that Allie Waters did not remove it, because he was told by Tenas Milbourn, the foreman, to do something else. He does not remember what other work he was told to do. On cross-examination he says: "On Monday evening a while before quitting [which was the day before the accident], when the driller called my attention to it [the rock], I went and told Mr. Milbourn." Mr. Milbourn denies this, but on demurrer to evidence we must accept the testimony of Waters as true. Presumably, the driller referred to by Waters was the deceased. Abe Madden, another witness for plaintiff, testifies that on the morning of the accident he heard deceased tell Milbourn that "that stone looked dangerous up there," and that Milbourn replied that he had examined it, and that it was all right. This witness also says he heard Milbourn say to deceased that, if he did not set his drill there, he would get some one else in his place. Allie Waters also says that deceased "often helped [him] to clean off a set when he had no drilling to do."
J. F Purcell, superintendent of the quarries and a witness for defendant, testifies that he instructed the drillers to see that everything was safe above them before beginning to drill, and that he personally instructed deceased on the day of the accident. This is not denied, except inferentially by one or two other drillers, who say that they were not so instructed. The foregoing recital is sufficient to show the state of facts which, as plaintiff's counsel contend, are sufficient to establish defendant's negligence. But some one, or more, of defendant's employés, whose duty it was to remove the dangerous stone, must stand in the relation of vice principal to deceased, before the law will hold it liable for their negligence. It is contended that Tenas Milbourn, Abe Miller, and Allie Waters were all vice principals. That depends, however, upon whether the negligent act, of which they were guilty, related to the performance of a nondelegable duty which defendant owed to deceased, and that, in turn, depends upon whether it was the company's duty to keep the quarry, at all times, in a reasonably safe condition. If so, then Abe Miller and Allie Waters, whose duty it was to take down the loose stone, were performing a nonassignable duty of the master, and therefore occupied the relation of vice principal to deceased. "Whether the employé whose negligence caused the injury was or was not a vice principal is determined by the nature of the functions which he was, as a matter of fact, discharging at the time when the injury was received, and not by the appellation by which he was designated." 2 Labatt on Master and Servant, § 508. Jackson v. Railroad Co., 43 W.Va. 380, 27 S.E. 278, 31 S.E. 258, 46 L.R.A. 337. But we have already said that the master was not under duty to keep the quarry safe. That it would sometimes become unsafe was to be expected. The work could not be performed without blasting down the cliff, and the blasting shattered the rock and made the place unsafe. Deceased must have known that loose stones were liable to fall after a blast, if they were not removed, and men were employed to remove them. The work to be performed being of such character as,...
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