Newhouse v. Kanawha & W

• Decision Date: 12 November 1907
• Court: West Virginia Supreme Court
• Parties: NEWHOUSE. v. KANAWHA & W. v. R. CO.

59 S.E. 1071

62 W.Va. 562

NEWHOUSE.

v.KANAWHA & W.

v.R. CO.

Supreme Court of Appeals of West Virginia.

Nov. 12, 1907.

Rehearing Denied Jan. 7, 1908.

1. Master and Servant — Safe Place to Work—Duty of Master.

A reasonably safe place to work, which it is a nonassignable duty of the master to provide, includes, in the case of railroads, the entire track over which the servant is required to pass in discharge of his duties.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 218-223.]

2. Same—Directing Verdict.

Where, in an action to recover damages for injury due to negligence, there is evidence which tends in a fairly appreciable degree to prove negligence, it is error to strike out the evidence of the plaintiff and direct a verdict for defendant.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1000.]

3. Same—Negligence of Master.

Generally, as between master and servant, negligence will not be imputed from the circumstance alone of injury due to defective machinery or appliances, but some affirmative acts of negligence, either of omission or commission, must be shown.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 881, 898.]

4. Same—Negligence—Question for Jury.

But evidence showing suspension of wire cables across a railroad track so low as to obstruct the passage of a train, and actually obstructing the track but a short time before injury results therefrom, is sufficient, in an action by a servant injured thereby while riding home from his place of work on the construction train of the defendant company, to constitute a prima facie case of negligence, entitling him, until explained by the defendant consistently with the exercise of due care, to have such evidence submitted to the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1010-1050.]

(Syllabus by the Court.)

Error from Circuit Court, Kanawha County.

Action by Louis Newhouse against the Kanawha & West Virginia Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial granted.

Wertz & Van Fleet, for plaintiff in error.

Chilton, MacCorkle & Chilton and T. R. English, for defendant in error.

MILLER, P. The demurrer to the plaintiff's declaration was overruled by the court below, and its action thereon is not challenged here. The plaintiff, a day laborer employ ed by defendant in the construction of its railroad, in an action on the case seeks recovery of damages for injuries sustained by him on the evening of May 23, 1906, in leaping from a flat car of the construction train on which he was being carried by the defendant from his place of work to his boarding house. Along the line of the railroad was a derrick used in lifting stone, supported by two large wire guy ropes stretched over the track. The derrick had been there for some time, and the construction train had safely passed and repassed under these ropes many times. But on the outward trip on the day of the injury the train was flagged before reaching the derrick; and the conductor, who went forward to learn the cause, on returning announced, In the presence of the plaintiff and others on the flat car, that the guy ropes were too low. But after a delay of only a few moments the train passed on under the ropes without further interruption. The trouble occurred at the derrick in returning in the evening of the same day. The train was moving backward, the engine pushing the flat car, which passed safely under the first rope; but this rope was caught by the cab of the engine, pulling down the derrick and causing the second rope to fall upon and sweep across the top of the flat car, and in order to avoid being dragged off by the rope the plaintiff was obliged to leap off the moving car near the tender, alighting on some rocks on a steep embankment, bruising himself and breaking three ribs, and, as he rolled down the embankment, the heel of his left shoe was caught on the track by the wheels of the engine and his foot mashed, resulting in amputation of part thereof.

The evidence is very incomplete and unsatisfactory, in not showing to whom the derrick belonged, how it was or had been employed, more of the particulars regarding the delay of the train in the afternoon of the day of the accident, how and by whom the ropes were elevated so as to allow the train to pass under them, in whose charge the derrick was, and what provision the defendant had made to keep its track clear at this point. The plaintiff evidently relied on proof of the obstruction alone as making out a case of presumptive negligence, regarding the other matters as defensive in nature. It is not generally true, however, as between master and servant, that negligence is imputed from the circumstance alone of injury due to defective appliances or machinery; but, as a general rule, some affirmative acts of negligence, either of omission or commission, must be shown. Minty v. Railroad Co., 2 Hasb. (Idaho) 471, 21 Pac. 660, 4 L. R. A. 409; Wood, Mast. & Serv. § 382; Railway Co. v. Ledbetter, 34 Kan. 326, 8 Pac. 411; Dobbins v. Brown, 119 N. Y. 188, 23 N. E. 537; 2 Labatt, Mast. & Serv. §§ 833-835.

After the plaintiff had introduced evidence of the nature and cause of, and how he received, his injuries, developing the facts sub-stantlally as stated, the court sustained the defendant's motion to strike out his evidence and direct a verdict in its favor. The only question presented here is, was this action of the court erroneous? It is said by Judge Holt in Robinson v. Railroad Co., 40 W. Va. 585, 21 S. E. 727: "If there is no evidence in any fairly...