Russell Creek Coal Co v. Wells

• Decision Date: 17 November 1898
• Court: Virginia Supreme Court
• Parties: RUSSELL CREEK COAL CO. v. WELLS.

31 S.E. 614

96 Va. 416

RUSSELL CREEK COAL CO.

v.WELLS.

Supreme Court of Appeals of Virginia.

Nov. 17, 1898.

Appeal—Bill op Exceptions—Ruling on Demurrer. — Injury to Servant — Dangerous Premises—Assumption op Risk—Negligence op Fellow Servant.

1. A bill of exceptions is unnecessary where the lower court overruled defendant's demurrer to the declaration, inasmuch as the judgment on the demurrer could be reviewed on a writ of error.

2. The appellate court cannot look to the evidence in determining whether a ruling on the demurrer to declaration was erroneous or not.

3. In an action for damages for injuries received in a coal mine by the falling of a piece of slate from the roof wherein plaintiff was at work, it is necessary to show that the injury was "directly" caused by the failure of defendant to keep the room in a reasonably safe condition in that nature of business.

4. An instruction that if, under the rules of the defendant company, it was the duty of its mine boss to make daily visits to the room in which the miners were at work, to see whether the rooms were in safe condition for the miners, and if the mine boss neglected to do so, or if he failed to discover any threatening danger which was discoverable by use of ordinary diligence, then defendant was guilty of negligence, is not misleading, where other instructions were given that if plaintiff loosened the piece of slate which injured him, and so caused the accident, or if plaintiff could have avoided it by ordinary prudence, then plaintiff could not recover.

5. An instruction which assumes that a mine boss is a fellow servant of a miner is erroneous, in that it fails to discriminate between the duties imposed on him which were not assignable and those affecting the mere administration of the work to be done in the mine.

6. If the place wherein a miner works was in the first instance reasonably safe, and was afterwards rendered unsafe by the negligent manner in which the mining company's mine boss directed the work therein, and the miner was injured thereby, the company is not liable, inasmuch as the mine boss and miner were fellow servants.

7. Where, from the nature of the work, the condition of the place wherein a miner worked was constantly changing, and the duty of keeping it in a safe condition in the prosecution of the work devolved on the miner and the mine boss, the miner will be deemed to have assumed the risk.

8. A servant is bound to exercise as much care for his own safety from such dangers as are known to him or are discernible by ordinary care on his part as the master is bound to exercise on his behalf, and negligence on the part of a master does not excuse the servant from a failure to exercise such care, where such failure of the servant was the cause of his injuries.

9. A coal miner of seven years' experience knew that the room in which he worked was in an unsafe condition, and promised the mine boss that he would set a prop under a piece of slate which seemed to he loose, but he did not do so. It was the duty of the miner to watch the roof all over the room, and to prop it, when propping was necessary. Immediately after sending off a blast, which the miner knew might have loosened the slate, he went into the room, and started to put up his pick to see if the roof was safe, but before he touched the roof with his pick the slate fell, injuring him. Held, that the miner could not recover, as he had not only assumed the risks of the service, hut such as became known to him in the progress of the work by ordinary care.

Error to circuit court, Wise county.

Action by R. A. Wells against the Russell Creek Coal Company. There was a verdict in favor of plaintiff, and from a denial of a motion to set aside the verdict and judgment rendered thereon, and award a new trial, defendant brings error. Reversed.

Fulton & McDowell, for plaintiff in error.

Bullitt & Kelly and O. M. Vickars, for defendant in error.

CARDWELL, J. The defendant in error (plaintiff in the court below) received injuries by the falling of a piece of slate from the roof of the coal mine of the defendant company in which he was working, and brought this suit in the circuit court of Wise county to recover damages therefor, and upon the trial judgment was rendered against the defendant company for $2,000.

A bill of exceptions was taken to the action of the lower court in overruling the demurrer to the plaintiff's declaration. This was unnecessary, as the judgment upon the demurrer was sufficient to bring this ruling under review by this court upon a writ of error.

The declaration states a good cause of ac-tion, and the demurrer was properly overruled. Locomotive Works v. Ford, 94 Va. 640, 27 S. E. 509; Jones v. Cotton Mills, 82 Va. 140, 147, 148; 4 Minor, Inst. 690; Code Va. § 3246.

Whether the allegata and probata correspond is another question, but this court cannot look to the evidence in determining whether or not the ruling of the court below upon the demurrer is erroneous.

The next assignment of error is to the refusal of the court to exclude evidence tending to show an accident happening away from the place where plaintiff was actually working, the grounds upon which the motion was made being that the defendant company had no notice that such proof would be offered. It is unnecessary, however, to consider this assignment of error, as the judgment complained of must be reversed for other errors, and the question is not likely to arise at the next trial.

The third assignment of error is to the refusal of the court to grant the defendant company a continuance after all the evidence had gone to the jury. This is without merit, but, for the same reason, need not be discussed.

At the trial the court gave five instructions to the jury at the instance of the plaintiff, and to the first and third the defendant company objected. They are as follows:

"No. 1. The court tells the jury that it was the duty of the defendant, except in so far as it may have been excused therefrom by the duty of the plaintiff, under the evidence, to use ordinary care and skill in the management of that kind of business for the protection of the plaintiff; and If they believe from the evidence that the defendant failed to do what, under the evidence, the jury may believe was incumbent on its part to do, in order to keep the room in which plaintiff worked in a reasonably safe condition in that nature of business, and that the injury to the plaintiff was caused by such failure, if there was any, then they should find for the plaintiff."

"No. 3. The court tells the jury that if they believe from the evidence that, under and by the rules of the defendant company, it was the duty of the bank or mine boss of said company to make daily visits to the room in which the miners were at work, for the purpose of seeing whether or not said rooms were In safe condition for the miners to continue their work, and if they further believe from the evidence that the mine boss of the defendant failed or neglected to visit the room In which the said plaintiff was at work, or failed, if he made such visit, to discover the danger which threatened the plaintiff if he continued his work In said room, if they believe such danger was threatening, and could have been discovered by the use of ordinary diligence on the part of said boss, then said company was guilty of negligence."

The objection to the first is that it does not distinguish between the proximate and remote cause of the accident complained of, and that it was calculated to mislead the jury Into finding for the plaintiff, in disregard of the evidence tending to show, at least, that the proximate cause of the injury was the "shot" or "blast" made by the plaintiff shortly preceding the accident; the contention of the defendant company being that the instruction should have been so amended as to distinguish between the proximate and remote cause by inserting the word "directly" after the word "was" in next to the last line of the instruction, whereby the concluding sentence of the instruction would have read, "and that the injury to the plaintiff was directly caused by such failure, " etc., i. e. the failure of the defendant company to keep the room in which the plaintiff worked in a reasonably safe condition in that nature of business, etc.

The instruction should have been so amended, and this will more fully appear when we come to discuss the evidence in the case.

The third instruction, standing alone, might have misled the jury, but the objection thereto, if any, was removed by the fifth and sixth instructions given for the defendant company.

Defendant's fifth instruction told the jury that if they believed from the evidence that the plaintiff himself loosened the piece of slate which fell upon him by picking or pulling at it, and so caused the accident, or if they believed plaintiff pulled the slate down upon himself, then they should find for the defendant; and the sixth told them that, if the plaintiff could have avoided the accident by the exercise of ordinary prudence and care, then they should find for the defendant; and that, in an employment which is hazardous, the prudence and care exercised must measure up to the dangers of the employment.

With these instructions before the jury, it is difficult to perceive how they could have been misled by the plaintiff's instruction No. 3.

The next assignment of error is to the refusal of the court to give instructions numbered 3, 7, and 9, asked for by the defendant company. No. 3 is as follows:

"The court tells the jury that, if they believe from the evidence that the accident was due to the negligence of the mine boss, then the negligence was the negligence of a fellow servant, and the plaintiff cannot recover."

This instruction proceeds upon the idea that the mine boss was, under all...