Mills v. Virginian Ry. Co.
| Decision Date | 09 March 1920 |
| Docket Number | 3920. |
| Citation | 102 S.E. 604,85 W.Va. 729 |
| Parties | MILLS v. VIRGINIAN RY. CO. |
| Court | West Virginia Supreme Court |
Submitted March 2, 1920
Syllabus by the Court.
A declaration in an action for damages for alleged wrongful death, brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), which, in each of its two counts, sets forth several charges of negligence, and then alleges that, by reason of all the matters and things therein previously set forth, the plaintiff's decedent came to his death, sufficiently states causal connection between the acts of negligence and the injury complained of.
Although a minor servant over 14 years old is presumed to have capacity to comprehend and duly appreciate the dangers ordinarily incident to his employment, the inquiry as to whether he did actually comprehend and fully appreciate such a danger, in any case in which he has suffered injury therefrom, in the course of his employment is one for jury determination, unless all the facts and circumstances, including his age, intelligence, experience and warning of the danger and advice as to means of avoidance thereof, if any, make his possession of such knowledge and appreciation so clear as to leave no room for a reasonable and intelligent opinion to the contrary.
Whether a minor servant 18 years old, working as a section hand on a railroad, comprehended and fully appreciated the danger attendant upon his standing on the front end of a lever hand car of standard make and working the lever, while the car was under way, in the absence of warning thereof and advice as to means of avoiding it, is a question proper for jury determination, and their findings that he did not and that the failure of the employer, through its foreman, to give him warning of such danger, or to put him in a safer place on the car, in view of his immaturity and inexperience, was negligence on its part and the proximate cause of the injury cannot be disturbed by the trial court.
If, in the trial of an action for damages for wrongful death, brought under the federal Employers' Liability Act, occasioned by a fall of an immature and inexperienced workman, from a hand car, while standing on the front end of it and working the lever, the defendant proves by its section foreman under whom the decedent was working at the time that he had observed nothing in the decedent's conduct calling for admonition against danger arising therefrom, the trial court may properly admit proof of contradictory statements previously made by the witness and tending to impeach such testimony.
Error from Circuit Court, Wyoming County.
Action by A. L. Mills, administrator of James Allen Mills, deceased, against the Virginian Railway Company. From a judgment setting aside a verdict for plaintiff, he brings error. Reversed, verdict reinstated, and judgment rendered thereon.
Toler & Moran, of Mullens, for plaintiff in error.
M. P. Howard, of Pineville, Loyall & Taylor, of Norfolk, and Hall, Wingfield & Apperson, of Roanoke, for defendant in error.
A verdict for $10,000, obtained in an action for alleged wrongful death, brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), was set aside by the judgment complained of, as being contrary to the law and the evidence. Argument to sustain this ground of the motion to set aside and also to sustain the court's action on the ground of erroneous admission of evidence, is found in the brief for the defendant in error. It also contains a cross-assignment of error predicated on the overruling of a demurrer to the declaration and each of its two counts.
The gravamen of the cause of action as set forth in the first count of the declaration is the failure of the defendant to warn the decedent of the ordinary dangers of the employment upon which he entered on the third day preceding his death; he being only 18 years old and having had no previous experience in the work he was employed to perform, namely, track repairing and incidental travel on, and operation of, a lever hand car of standard size and construction. On the third day of his employment, while assisting in the operation of the hand car and standing on the front end thereof between two other men, with only one hand on the lever, his hand became detached in some way, and he fell from the car and was run over by it and instantly killed. This count asserts, among other things, duty on the part of the defendant, in view of his youth, inexperience, and lack of knowledge of the danger incident to his work, to give him warning, instruction, and advice respecting them, and then states the situation of the decedent immediately before he fell, and avers that "by reason of all the matters and things" thereinbefore "set forth, he, the said James Allen Mills, was violently thrown and hurled from the platform of the said car" and killed as above stated. The second count repeats practically all of the allegations of the first, except failure of duty to warn, instruct, and advise, including requirement by the foreman, and necessity on the part of the decedent, owing to the crowded condition of the car, to stand on its edge, in the manner above indicated, while assisting in the working of the lever, and then attributes the fall and injury to his inexperience and lack of knowledge and information and neglect and refusal of the defendant to use due and reasonable care and caution to prevent injury to him and to provide him reasonably safe and secure appliances and tools and a reasonably safe and secure place in which to work. It then avers that, by reason of all the matters and things previously alleged, he was thrown and hurled from the car to his death.
Manifestly, the first count seeks recovery on the ground of failure, as omissive negligence, to warn, instruct, and advise respecting the danger of the employment, in view of alleged youth and inexperience, and that negligence is one of the things included in the generally stated reasons or causes of the injury. One of the grounds of action clearly disclosed by the second is requirement or necessitation, as active or affirmative negligence, of an immature and inexperienced servant, to work in an insecure and dangerous place, and the causal connection between it and the injury is alleged in the same way and the same terms. Lack of such connection is the only contention set up in support of the demurrer and is clearly untenable.
The minority and inexperience of the decedent are undisputed. Omission to warn him of the dangers incident to his employment and to advise him how to avoid them is also established. Although the space between the front handle bar of the car and the front end of the car was only eight or ten inches, it might not have been, as matter of law, a dangerous place in which to stand when the car was in motion, if the handle bar had remained fixed and not in motion, or if there had been something else the decedent could have grasped and held to; and, if it was, the danger might have been so open and apparent that he, a person against whom there was a presumption of capacity to appreciate danger,...
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