Sesler v. Coal Co.

• Decision Date: 29 March 1902
• Citation: 51 W.Va. 318
• Parties: Sesler v. Coal Co.
• Court: West Virginia Supreme Court

51 W.Va. 318

Sesler

v.Coal Co.

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1902.

Decided March 29, 1902,

1. Damages Reasonable Care Premises Contractor.

To one going upon another's premises, not as a trespasser or mere licensee, but by invitation in legal sense, as for instance, an independent contractor going upon such premises to do a work under contract with the owner, the owner owes the duty of ordinary, reasonable care to have and keep his premises in safe condition for such person's work, unless defects be Known to such person, (p. 321).

2. Contributory Negligence Contractor Owner.

If a contractor goes upon premises of another to perform a contract to do work lor 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 lair care cannot be known to such contractor, the owner is liable; but under the reverse of these circumstances, is not liable, (pp. 322, 323).

3. Personal Injury Evidence Irrelevant.

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. (p. 327).

4. Jury Trials Evidence Confined to Issue.

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. (p. 324).

5. Questions Propounded Answers Exceptions.

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, (p. 324).

6. Personal Injury Knowledge Owner Promise.

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 m 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. (pp. 327, 328).

Error to Circuit Court, McDowell County. Action by Louis Sesler against the Eolfe Coal & Coke Company. From a judgment for plaintiff, defendant brings error.

Reversed.

Ktjcker & Andeeso^ K, C. McClaugherty, and Bernard McClaugherty, for plaintiff in error.

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

Brannon, Judge

Louis Sesler in an action in the circuit court of McDowell County recovered a verdict and judgment against the Eolfe Coal & Coke Company for seven thousand dollars 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 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 wood work of the tipple and negligently caused, the wood work to be knocked down while the plaintiff was at work in his place of duty as such servant, and negligently caused a largo 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 (altered 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 employe 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 plain till 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 he 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 wood-work of the tipple and negligently caused the wood-work 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 specific work? It is not that of a master to a servant. 1 Thomp. on Negl. s. 680. But though this is so, the averment of the declaration that a duty of master to servant rested on the defendant, is merely an averment of matter of law, not of fact, and as a declaration need not, should not, aver matter of law, we treat such averment as harmless surplusage. Hogg, Plead. & Prac, 50. This is not the case of a mere trespasser or licensee going upon the premises of another and receiving hurt, as discussed plainly by Judge English in Wo olivine v. Railroad, 36 W. Va. 329. Rather does the case fall in that class of cases where one going upon the premises of another, by invitation of that other, and receives hurt. W, e do not mean one invited merely by courtesy to visit; such a person takes the premises as he finds them. 2.Jaggard Torts, s. 258. By one going upon premises under invitation, I mean invitation in a legal sense. "To come under an implied invitation, as distinguished from the mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permils to be carried on there. There must be some mutuality of interests in the subject to which the visitor's business relates, although the particular tiling which is the subject of the visit may not be for the benefit of the occupant." 3 Ell. on Railroads, s. 12-19; Plummer v. Dill, 32 Am. St. R. 463; 2 Bailey, Personal Inj. s. 3183. The plaintiff was upon the premises of the defendant at the call of business and was there under legal invitation, and not a trespasser or licensee. So, treating him as an invitee, the question arises, What duty did the company owe him? That very late great work, Thompson's Commentaries on Negligence (2d Ed.) vol. 1, s. 979, says: "It is not necessary to suggest that where a proprietor engages an independent contractor to do work upon his premises, the contractor, while executing the work, will be there in pursuance of the invitation of the proprietor, and the proprietor will, under the principles discussed in this chapter, he under the duty of exercising ordinary or reasonable care, to the end of promoting his safety." In Barnctt v. Railroad Co., 102 IT. S. 577, the syllabus is"as follows: "The owner or occupant of land who induces or leads others to come upon it for a lawful purpose is liable in damages to them they using due care for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and he negligently suffered it to exist, without giving timely notice thereof to them or to the public." In Samuelson v. Cleveland Iron Co., 43 Am. Eeports 456, Judge Cooley uses this language, which seems applicable to this case in the view considered: "If the mine were in an unsafe condition when it was handed over to the contractors, and this was known to the defendant, or by the exercise of proper care ought to have been known, and if in consequence a miner who was brought there in ignorance of the danger was killed, the defendant should be held responsible. Every man who expressly or by implication, invites others to come upon his premises, assumes to all who accept the invitation to do the duty to warn them of any danger in coming, which he knows of, or ought to know of, and of which they are not aware. This is a very just and very familiar principle."

In 26 L. E. A. 524,...