Norton Coal Co v. Murphy
| Citation | 108 Va. 528,62 S.E. 268 |
| Parties | NORTON COAL CO. v. MURPHY. |
| Decision Date | 10 September 1908 |
| Court | Virginia Supreme Court |
Where defendant's mine foreman, whose duty it was to inspect the mine, had been notified that the roof of the haulway where plaintiff was injured by the fall of slate, was in a dangerous condition, and, if it was not timbered or taken down, some one would be injured or killed, but notwithstanding this warning the foreman failed to make any proper inspection of the roof, and directed plaintiff and his assistant to tear up the track in the haulway and relay it before they came out of the mine, during which operation the slate fell and plaintiff was injured, defendant was negligent.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 209.]
Plaintiff and his assistant were ordered to tear up the track in the haulway of a mine, and relay it before coming out. They commenced the work when plaintiff heard something fall. He testified he thought it was caused by a "rat running around the gob." The substance which fell was about 10 feet from him, and, plaintiff knowing that this was an indication that the roof was unsafe, tapped the roof immediately above him to ascertain its condition, and, finding it safe at that point, continued his work without further examination either at the point from which the substance might have fallen, or in the direction he was about to work. Some two hours afterwards the slate fell which caused plaintiff's injury at a point 40 or 50 feet distant and near the face of the heading. Held, that plaintiff was not negligent as a matter of law.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1089-1132.]
Under the rule that an employé is not chargeable with risks which may be obviated by reasonable care on the master's part, and only takes the risks of the employment which cannot be so obviated, plaintiff did not assume the risk of such injury; it being the duty of the mine foreman to inspect the roof, and see that it was reasonably safe.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 557.]
Error to Circuit Court, Wise County.
Action by A. W. Murphy against the Norton Coal Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Ayers & Fulton, Bullitt & Kelly, and J. W. Chalkley, for plaintiff in error.
Vicars & Peery and A. N. Kilgore, for defendant in error.
BUCHANAN, J. A. W. Murphy, the defendant in error, while engaged in repairing tracks in the coal mine of the Norton Coal Company, the plaintiff in error, was injured by a piece of slate, some 9 feet long, 5 feet wide, and 17 inches thick, falling upon him from the roof of the room or hallway in which he and another employé named Hanks were working. To recover damages for that injury this action was instituted.
The defendant company demurred to the evidence. Its demurrer was overruled, and judgment rendered in favor of the plaintiff. To that judgment this writ of error was awarded.
Considered as on a demurrer to the evidence, the negligence of the defendant is established. Its mine foreman, whose duty it was to inspect the mine, had been notified by one of the defendant's employés that the roof of the haulway where the plaintiff was injured was in dangerous condition, and if it was not timbered or taken down, some one would be injured or killed. Notwithstanding this notice and warning, the foreman failed to make any proper inspection of the roof in the light of the information he had as to its condition, but directed the plaintiff and his assistant or associate, Hanks, on the evening of the accident, to tear up the track in the haulway and relay it before they came out, so that the mining machine could get through to the face of the coal that night. While engaged in that work the plaintiff was injured, and Hanks was killed by the falling slate.
The defendant's contention is that, even though it was negligent, the court erred in overruling the demurrer to the evidence (1) because the plaintiff was guilty of contributory negligence; and (2) because having knowledge of the dangerous condition of the roof ofthe haulway, he assumed the risk by continuing to work therein.
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Colonna Shipyard Inc v. Dunn
...Darby Coal Min. Co. v. Shoop, 116 Va. 848, 83 S. E. 412; Black v. Va. Portland Cement Co., 104 Va. 450, 51 S. E. 831; Norton Coal Co. v. Murphy, 108 Va. 528, 62 S. E. 268. An employee cannot be held to have assumed the risk of a dangerous and unusual condition due to the negligence of his e......
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Colonna Shipyard v. Dunn
...also Darby Coal Min. Co. v. Shoop, 116 Va. 848, 83 S.E. 412; Black v. Va. Portland Cement Co., 104 Va. 450, 51 S.E. 831; Norton Coal Co. Murphy, 108 Va. 528, 62 S.E. 268. An employee cannot be held to have assumed the risk of a dangerous and unusual condition due to the negligence of his em......
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Lloyd v. N. & W. Ry. Co.
...than in Virginia, and is not in any way negatived, but, on the contrary, is distinctly recognized in the cases of Norton Coal Co. Murphy, 108 Va. 528, 62 S.E. 268; C. & O. Ry. Co. Meadows, 119 Va. 34, 89 S.E. 244; and Clinchfield Coal Corporation Ray 121, Va. 318, 93 S.E. 601, relied on by ......
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Chesapeake & O. Ry. Co v. Meadows
...v. Hall, 232 U. S. 94, 34 Sup. Ct. 229, 58 L. Ed. 521; Black v. Va. Portland Cement Co., 104 Va. 450, 51 S. E. 831; Norton Coal Co. v. Murphy, 108 Va. 528, 62 S. E. 268; Darby C. Min. Co. v. Snoop, 116 Va. 848, 83 S. E. 412; 3 Labatt, M. & S. § 1189, p. 3204 et seq. In this case the plainti......