Rttfus Estep v. C. E. Price.

• Decision Date: 06 February 1923
• Docket Number: No. 4493.,4493.
• Citation: 93 W.Va. 81
• Court: West Virginia Supreme Court
• Parties: Rttfus Estep v. C. E. Price.

93 W.Va. 81

Rttfus Estep

v.C. E. Price.

No. 4493.

Supreme Court of Appeals of West Virginia.

Submitted January 30, 1923.

Decided February 6, 1923.

1. Master and Servant Common Law Defenses Not Available to Employer Within Compensation Act.

An employer within the terms of the workmans compensation act, who fails to avail himself of its protection, is not liable for an injury sustained by an employee while in the performance of his duties unless the employer's negligence is the proximate cause of the injury. He is liable to the employee for negligence, but cannot interpose the common law defenses of fellow servant rule, assumption of risk, or contributory negligence as a defense. The negligence of a fellow servant from which the injury results makes the master liable. (p. 84).

2. Trial Motion to Direct Verdict Should be Guided by Court's Action if Motion For New Trial Made for Insufficient Evidence.

In considering a motion to strike out plaintiff's evidence and direct a verdict for defendant, the court should be guided by what its action would be if a verdict was returned for plaintiff, and a motion made for a new trial on the ground of insufficient evidence, (p. 84).

3. Same All Inferences Which Jury Could Justifiably Draw From Plaintiff's Evidence Must be Included in Consideration

of Motion to Direct Verdict for Defendant.

In considering such motion plaintiff's evidence, together with all inferences which the jury could justifiably draw therefrom must be included, discarding all of defendants evidence in conflict therefith. (p. 84).

4. Same Master Under Duty to Provide Reasonably Safe Appli-ances; Negligence in Furnishing Appliances Question for Jury.

Generally, it is a master's duty to provide his servants reasonably safe and suitable tools and appliances sufficient for the work intended, and the servant may assume that the master has performed that duty; and whether the master has been negligent in that duty is generally a question for the jury under all the facts and circumstances. (p. 84).

(McGixnis, Ji dge, absent).

Error to Circuit Court, Logan County. Action by Rufus Estep against C. E. Price. From a judgment for defendant, plaintiff brings error.

Reversed and remanded.

Chafin & Estep, for plaintiff in error. Marcum & Shepherd, for defendant in error.

Lively, Judge:

Plaintiff in error, Rufus Estep, prosecutes this writ of error to the ruling-of the circuit court in his action for damages for personal injuries received while in the employ of defendant C. E. Price. At the conclusion of the evidence the court struck out all of plaitniff's evidence and directed a verdict for defendant, which was accordingly returned, upon which judgment of nil capiat was entered May 2nd, 1921.

The declaration contains two counts and sets out two causes of action. The first is that defendant failed to provide reasonably safe tools and appliances with which plaintiff and his fellow servants did defendant's work; and the second is that defendant was not reasonably careful in selecting and hiring competent and careful servants with whom plaintiff was required to work. Both counts averred that defendant, though an employer within the scope of the workmen's compensation law of the state, was not a subscriber to that fund and was not entitled to the protection afforded by that act, and could not avail himself of the common law defenses; namely, the fellow servant rule; assumption of risk; and contributory negligence.

Defendant was engaged in grading and constructing a county road, and employed defendant, with a number of other workmen, for that purpose. On the day of the injury plaintiff was engaged in constructing temporary houses for the workmen, and was directed by defendant to go a short distance and assist in felling a large elm tree which stood in the right of way, then being cleared. Accompanied by a fellow workman, Zarnes, he went to the tree where he says he found two other employees, Burks and Swann, engaged in sawing into the upper side of the tree with a cross cut saw. Plaintiff engaged in sawing with the cross cut saw, and Burks began to chop into the tree on the lower side, when the axe he was using slipped off the handle and struck plaintiff on the back of the hand severing some of the tendons, causing serious and possibly permanent injuries. This axe and its unsafe condition furnishes the central theme of controversy. It appears that defendant did not furnish the axe and did not know it was there until the injury was received. It was owned by Justice, who lived three or four hundred yards away from the tree, where it was used by him in chopping wood and was kept in his corn crib. He, Justice, did not know by whom the axe was taken from his crib to the tree. It does not appear how the axe came there. None of the workmen at the tree knew, according to the record. It was double bitted, and no one seems to know whether it was loose on the handle, except from the fact that it slipped off while the chopping was in progress. Defendant did not know where the axe came from or how it got there. He had sent one of his workmen to borrow the cross cut saw and had taken or directed to be taken a small poleaxe from a steam shovel on the grade for the purpose of chopping the tree. He had ordered three new poleaxes for use in clearing the grade, which had not arrived.

There is some conflict in the evidence as to whether plaintiff and Zarnes took the defective axe to the tree with them, or whether it was already there when they arrived. Burks and Swann say that plaintiff and Zarnes were at the tree and were sawing when they arrived. As before stated, plaintiff and Zarnes say that Burks and Swann were doing the sawing when they arrived. There is much controversy over how the accident occurred. Some of the witnesses say that the sawing had ceased, the saw having become bound in the tree, and that plaintiff was reclining near the foot of the tree when the chopping was in progress and had been warned by Burks, the chopper, to get out of danger. Evidently the court struck out plaintiff's evidence on the theory that defendant had not furnished the double bitted axe, but that some of his employees had procured it without his instructions, and he was not responsible for its presence or defects.

Was the evidence sufficient to make out a case for the jury? This is the sole question for decision. The rules is fairly well stated as follows: "If in any possible view of the evidence, a verdict would be sustained in favor of plaintiff, the court may not instruct in favor of defendant, although the...