Smith v. United Fuel Gas Co.
| Decision Date | 25 April 1922 |
| Docket Number | 4398. |
| Citation | 112 S.E. 205,91 W.Va. 52 |
| Parties | SMITH v. UNITED FUEL GAS CO. |
| Court | West Virginia Supreme Court |
Submitted April 18, 1922.
Syllabus by the Court.
Upon an admitted or clearly established state of facts, the question whether an employer's business is interstate or intrastate in character, is generally one of law for determination by the court.
Cleaning repair, and adjustment of large stationary gas engines constituting part of a compressor plant of a company producing, transporting and selling natural gas both within and without this state used in the collection of such gas from the wells and drawing and forcing it through pipe lines from the wells to the places of sale and consumption, by means of pumps and other instrumentalities, are parts of its interstate business.
As to its employees engaged in such work, it is not subject to the operation of the Workmen's Compensation Act (Code Supp 1918, c. 15P [secs. 657-710]), and, in an action by one of them for damages for a personal injury alleged to have been occasioned by its negligence, it may rely upon the common-law defense of assumption of risk, contributory negligence, and imputation of the negligence causing the injury, if any, to a fellow servant.
Proof in an action by a servant against his master for damages for a personal injury alleged to have been negligently caused by the latter, that the place of work in which the injury was incurred was a space under an idle engine three feet high and seven feet wide and not subject to molestation or invasion by running machinery, or otherwise from any direction, or to danger from any other cause, and that the work done therein and in the course of which the plaintiff suffered an injury emanating from the work itself, is not evidence of unsafety of the place of work within the meaning of the law, and does not justify the giving of instructions assuming the existence of such evidence.
A master is not bound to furnish his servant the safest and best tools and appliances with which to perform his work. It suffices that he exercise reasonable diligence to provide reasonably safe and suitable implements for such work.
In furnishing a servant suitable wrenches and a cold chisel and hammer with which to put iron or steel nuts on bolts and tighten them, the former to be used when practicable and the latter, when obstructions or the locations of the bolts render their use necessary, the master cannot be held liable for an injury resulting from their use, on the ground of breach of the duty imposed upon him by law, to exercise reasonable duty to furnish reasonably safe and suitable tools and appliances.
The danger incident to the use of a cold chisel and hammer, in the setting of metal nuts on bolts, is an obvious and ordinary risk assumed by an adult servant, even though he lacks experience in the particular work done with such implements and provision might have been made by the master for the performance thereof in such manner as would have obviated necessity for the use of the chisel and hammer.
In an action by a servant against his master for damages for the loss of an eye, occasioned by a steel sliver flying from a nut, as an incident of an effort by the former to set the nut with a cold chisel and hammer, under the circumstances above indicated, the trial court, if requested so to do, should direct a verdict for the defendant.
Error to Circuit Court, Roane County.
Action by Bud C. Smith against the United Fuel Gas Company for damages for personal injuries. Judgment for the plaintiff, and the defendant brings error. Affirmed.
Pendleton & Hedges and Harper & Baker, all of Spencer, for plaintiff in error.
R. G. Altizer, of Charleston, and S. P. Bell, of Spencer, for defendant in error.
POFFENBARGER, P.
The judgment brought up by this writ of error set aside a verdict for $5,935 in favor of the plaintiff, for damages resulting from the loss of an eye, alleged to have been occasioned by the negligence of the defendant. Omission of the latter to provide the former, its servant, a safe place in which to perform the work he was doing and safe and suitable tools and appliances with which to perform it, and to warn him of the dangers incident to his employment, a claim of inexperience on his part having been asserted, is the ground of negligence alleged.
Deeming itself not to have been within the scope of the Workmen's Compensation Act (Code Supp. 1918, c. 15P [secs. 657-710]), in respect of the transaction resulting in the injury complained of, the defendant, in addition to its denial of the charge of negligence, relies upon the common-law defenses of assumption of risk, contributory negligence, and infliction of the injury by the negligence of fellow servants. In its admission of evidence and grants of instructions, the court, regarding this position of the defendant as having been well taken, recognized and allowed all of said defenses; but, for some reason, the motion for a new trial was sustained.
The injury occured in repair of maintenance work done on one of the defendant's 8 gas engines used at its Spencer Compressor Station in Roane county, provided and maintained for the collection of natural gas from neighboring gas fields and enforcement of its flow to Sugar Grove in the state of Ohio, by way of Sandyville and Ravenswood in Jackson county, W.Va. At Ravenswood on the Ohio river, it is measured and sold to the Ohio Fuel Supply Company, but continues its flow through an 18-inch gas main, under the force applied by the compressor station at Spencer. The power plant of that station consists of 8 gas engines, 3 of 960 h. p. each, 3 of 480 h. p. each, and 2 of 300 h. p. each, operated in batteries of about 4, running alternately. While some of them are running, the others are cleaned, repaired, and adjusted. Working on one of them, while it was idle, the plaintiff suffered the injury complained of.
Defendant's prosecution of interstate as well as intrastate business, by means of its plant, and general employment of the engines at its compressor, in the course thereof, seem to be admitted. At any rate, these assertions are not expressly denied, and they seem to be well founded in law. United Fuel Gas Co v. Hallanan, 87 W.Va. 396, 105 S.E. 506; Barnett v. Coal & Coke Ry. Co., 81 W.Va. 251, 94 S.E. 150; Findley v. Coal & Coke Ry. Co., 76 W.Va. 747, 87 S.E. 198; Suttle v. Hope Natural Gas Co., 82 W.Va. 729, 97 S.E. 429. It is insisted, however, that, as the engine on which the plaintiff was at work, when hurt, was not actually employed in the running of the compressor, at the time, it was not then used in interstate business, and that, therefore, as to it, the defendant must be deemed to have been engaged in intrastate business only. Whether this position is sustained by McKee v. Ohio Valley Electric Co., 78 W.Va. 131, 88 S.E. 616, and Watts v. Ohio Valley Electric Co., 78 W.Va. 144, 88 S.E. 659, cases arising under the federal Employers' Liability Act, it is unnecessary to inquire, for that act has no application. Only railroad employers and employees are within its operation. Barnes' Federal Code 1919, § 8070 (U. S. Comp. St. § 8658). However, as the classification of the employees of an employer engaged in both kinds of business, contemplated by the Workmen's Compensation Act, is made with reference to the character of the business in which its employees are engaged, they may be applicable, under circumstances justifying their application. They hold that an employee engaged in service pertaining exclusively to intrastate business or on a structure or other instrumentality not actually used in interstate business, though designed and intended to be so used, is not employed in interstate commerce. In the Watts Case, the traffic handled and the cars run by the employee were clearly intrastate. In the other, the bridge on which the injured employee worked was incomplete and had not been used in any kind of traffic. The same observation may be truthfully made, respecting Roberts v. United Fuel Gas Co., 84 W.Va. 368, 99 S.E. 549, in which the Workmen's Compensation Act was successfully invoked. The employee was hurt while excavating a ditch for a pipe line, intended for use in interstate transportation but not yet actually so used. In Suttle v. Hope Natural Gas Co., 82 W.Va. 729, 97 S.E. 429, production of oil and gas and the drilling and cleaning of wells were held to be intrastate business and separable from the company's interstate business. To bring an employer engaged in both kinds of business, within the act, as to...
To continue reading
Request your trial