Powell v. Mitchell, (No. 8676)
| Decision Date | 22 March 1938 |
| Docket Number | (No. 8676) |
| Court | West Virginia Supreme Court |
| Parties | James M. Powell, Sr. v. Thomas Mitchell |
''An employer whose business comes within the purview of the Workmen's Compensation Act, and who does not take advantage of the immunity, is not liable for an injury sustained by an employee in the course of his employment in the absence of negligence on the part of the former which is the proximate cause of the inquiry." Pt. 1, Syllabus, Laas V. Lubic, 101 W. Va. 546, 133 S. E. 142.
Code 1931, 22-2-47, which requires a foreman to be employed "in every coal mine where five or more persons are employed in a period of twenty-four hours", does not embrace persons employed outside of the mine. The policy of the statute is the protection of those actually employed in the mines.
Disregard of a statutory requirement, to constitute actionable negligence, must be the natural and proximate cause of the injury.
Error to Circuit Court, Brooke County.
Action of trespass on the case by James M. Powell, Sr., against Thomas Mitchell to recover damages for personal injuries sustained by the plaintiff while employed as a coal loader in defendant's mine. To review judgment in favor of the plaintiff, the defendant brings error.
Judgment reversed; verdict set aside; new trial awarded.
Pinsky & Mohan, for plaintiff in error. Edgar R. Minnich and W. C. Revercomb, for defendant in error.
This is an action of trespass on the case instituted by James M. Powell, Sr., against Thomas Mitchell in the circuit court of Brooke County to recover damages for personal injuries sustained by the plaintiff while) employed as a coal loader in a small mine operated by the defendant. To a $1,500.00 judgment, the defendant prosecutes error.
The plaintiff was injured shortly before noon, Monday, October 21, 1936, by a fall of stone from the roof at the face of the coal. The room in which he was working was 120 long and 20 wide. The vein was of uneven thickness, the ribs, at the face, being 2 1/2 and 4 1/2 feet, respectively. As to the condition of the room, the evidence, at its best fragmentary and. indefinite, is to the effect that, on Friday (the last working day prior to the date of the accident) there was a horseback, or roll, of stone, which started on the left hand side of the room and went quartering across in it, in the center or the middle of the room; that a portion, at least, of the horseback had come down and cut off a small amount of coal; and that there were eighteen or twenty inches of coal under the horseback.
Plaintiff testified that on Friday, the defendant, after being told, in response to an inquiry, that there ought to be coal back of the horseback, directed plaintiff to "go ahead with the room"; and that on the Monday following he went to the right corner of the room and sounded the ceiling before starting to work. He states, in effect, that at the time of his inspection, the break or clay vein from which the stone fell some three hours later was not noticeable; that the stone fell out of the roof at the face at the right hand corner, and not out of the horseback in the center of the room; that he could not tell the clay vein was there; that so far as he could judge, the ceiling on the right half of the room was safe; that the roof was posted up as far as possible; that the only thing a mine foreman could have done was to have sounded the ceiling, and that it was problematical whether he could have told anything more.
Mitchell testified that he had tested the ceiling in the right half of the room and found it safe. There is also testimony to the effect that plaintiff was warned by defendant on Friday to keep out from under the horseback (which was referred to as being in the center of the room) and not to cut into it, and that dynamite would be furnished on the next working day to shoot the rock down. The foregoing conversation., which was supposed to have been made in the presence of Ben Black, was testified to by the latter and denied by the plaintiff, who said that Black was not present at the time of defendant's visit.
The defendant, an employer within the meaning of the Act (Code 1931, 23-2-1), not subscribing to the fund, cannot avail himself of the common law defenses, such as assumption of risk, the fellow-servant rule, or contributory negligence. Barr V. Knotts, 101 W. Va. 440, 443, 133 S. E. 114; Louis v. Smith-McCormack Constr. Co., 80 W. Va. 159, 92 S. E. 249; Be Francesco V. Piney Mining Co., 76 W. Va. 756, 757, 86 S. E. 777.
Defendant, for grounds of reversal, contends that the plaintiff has failed to prove that the injury was the result of the negligence charged in the three counts of the declaration, and therefore that the trial court erred in overruling defendant's motion to strike the plaintiff's evidence, both at completion thereof, and at the end of the trial, and also in refusing to set aside the verdict of the jury.
The first count of the amended declaration charged as negligence that the defendant, not regarding his duty, did not use proper care for the safety of the plaintiff while engaged and working in the mine, and did not operate said mine with reasonable safety and ordinary care as he could and might have done, so that the plaintiff could work therein with reasonable safety in the employment of said defendant, but said defendant wholly neglected so to do, and wrongfully and negligently permitted large stone, slate and earth to hang loosely in and about said coal mine and in and about the roof of the same at the point where the said plaintiff was working for the defendant, and then and there wrongfully and negligently failed to provide the said coal mine and roofing thereof with sufficient props and stays to keep the stone, slate, and earth that hung loosely in and about said roof from falling in and on said plaintiff, and as a result thereof, plaintiff was injured.
The alleged failure to supply props finds no support whatever in the evidence, and is indirectly negatived by plaintiff's own testimony to the effect that everything was posted up just as close as could be. And, as to the large stone, slate and earth, which the declaration alleged was negligently permitted to hang loosely in and about the mine, the plaintiff testified, in...
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