Sesler v. Coal

• Citation: 51 W.Va. 318,41 S.E. 216
• Court: Supreme Court of West Virginia
• Decision Date: 20 March 1902
• Parties: SESLER v. ROLFE COAL, & COKE CO.

41 S.E. 216
51 W.Va. 318

SESLER
v.
ROLFE COAL, & COKE CO.

Supreme Court of Appeals of West Virginia.

March 20, 1902.

NEGLIGENCE—DANGEROUS PREMISES—INDEPENDENT CONTRACTOR—DUTY OF OWNER— REPAIR OF COAL TIPPLE—PERSONAL INJURIES—FAMILY OF PLAINTIFF — EVIDENCE — ADMISSIBILITY—BILL OF EXCEPTIONS—SUFFICIENCY.

1. To one going upon another's premises, not as a trespasser or mere licensee, but by invitation in legal sense, —as, for instance, independent contractor going upon such premises to do a work under contract with the owner, —the owner owes the duty of reasonable care to have and keep his premises in safe condition for such person's work, unless defects be known to such person.

2. If a contractor goes upon premises of another to perform a contract to do work for the owner, and is injured from defect in the premises known, or which by fair care ought to be known, to the owner, and unknown, or which by fair care cannot be known, to such contractor, the owner is liable; but, under the reverse of these circumstances, he is not liable.

3. In an action for personal injury, evidence that the plaintiff is a married man, with young children, is irrelevant and incompetent, and it is error to admit it.

4. Jury trials should be strictly confined to the issues made and the legitimate facts bearing on them, and the practice of dragging in extraneous matters to influence a jury cannot be too strongly condemned. Nothing outside of the legitimate facts should be introduced to affect the minds of those who are to decide the case.

5. When a question is put to a witness, and the court refuses to allow it to be answered, if the question does not plainly itself import that the answer will prove a fact material, it must appear by a bill of exceptions what was proposed and expected to be proven, else there is no error apparent. If a question objected to is answered, the answer must be shown, else there is no error apparent.

6. If the owner of a coal tipple promises a contractor executing a contract for masonry work in repairing the tipple not to have carpenters throw down old timbers of the tipple from any section of the tipple while the contractor is working at the masonry at a particular section of the tipple, and the contractor goes to another section of the tipple in work connected with his contract, relying upon such promise, and being ignorant that carpenters of the owner of the tipple are still engaged in removing old timbers, and the contractor is injured by a piece of timber being thrown upon him in the work of removal by the carpenters, the owner of the tipple is liable. But in the absence of such promise the owner would not be liable if the contractor knew that carpentry work was going on above such other section, though he did not know that the particular work of removing old timbers was being done, if he took no precaution to learn the character of the work being done.

(Syllabus by the Court.)

Error to circuit court, McDowell county; J. M. Sanders, Judge.

Action by Louis Sesler against the Rolfe Coal & Coke Company. From a judgment for plaintiff, defendant brings error. Reversed.

Rucker & Anderson, R. C. McClaugherty, and Bernard McClaugherty, for plaintiff in error.

T. L. Henritze and W. L. Taylor, for defendant in error.

BRANNON, J. Louis Sesler, in an action in the circuit court of McDowell county, recovered a verdict and judgment against the Rolfe Coal & Coke Company for $7,000, and the company has brought the case here.

The first complaint against the judgment is the overruling of a demurrer to the declaration. The declaration contains two counts. The first count alleges that the defendant owned and operated a coal mine and tipple, the tipple being used in unloading mine cars of coal into railroad cars for shipment to market, and that the plaintiff was the servant and employe for hire of the defendant, engaged in repairing the stone foundation of the tipple, and that while so engaged it was necessary for him to go under the tipple for the purpose of repairing and building the foundation of the tipple; and that it was the duty of the defendant to furnish

[41 S.E. 217]

the plaintiff a safe place for him to work, yet the defendant did not use proper care in providing such safe place, and that the defendant placed the plaintiff under the woodwork of the tipple and negligently caused the woodwork to be knocked down while the plaintiff was at work in his place of duty as such servant, and negligently caused a large piece of timber of the tipple to fall upon the plaintiff, whereby he was permanently injured, as further specified in the declaration. To this count, as a plain count based on the relation of master and servant, there is no objection made by counsel. The objection goes to the second count. This second count states that the plaintiff entered into a contract with the defendant, by which it was agreed that for a certain sum of money the plaintiff was to erect, construct, and repair the foundation of the tipple, and then alleges that the plaintiff "thereby became the servant and employs of the defendant for hire and reward, and then and there engaged in the work of the defendant in erecting, constructing, and repairing the foundation of the tipple, and while so engaged in the discharge of his duty it became necessary for the plaintiff to go under, upon, and about the tipple." The count then avers that "it became and was the duty of the defendant to furnish for the plaintiff, while he was so in its employ, a good, proper, safe, and suitable place for him to work, so that he might be secure and safe in all respects from injury against which ordinary care and foresight could avail." The count then avers that the defendant did not use proper care in providing a safe place for the plaintiff to work, but that, on the contrary the defendant put the plaintiff to work under the woodwork of the tipple, and negligently caused the woodwork to be knocked down, and negligently and carelessly caused a large piece of the timber of the tipple to fall on the plaintiff, thereby inflicting great injury upon him. it is urged before us that, as this second count states a contract to do work, it created no relation of master and servant, and did not place the defendant under that duty resting on a master for the safety of his servant, namely, the duty to give him a safe place in which to work. What duty, by law, is due from an employer to one who is an independent contractor to do a...