South-west Va. Imp. Co v. Andrew

• Decision Date: 04 July 1889
• Court: Virginia Supreme Court
• Parties: South-west Va. Imp. Co. v. Andrew.

9 S.E. 1015

(86 Va. 270)

South-west Va. Imp. Co.

v.Andrew.

Supreme Court of Appeals of Virginia.

July 4, 1889.

Master and Sekvaxt — Assumption of Risk — Pleading.

1. Deceased, a sort of subchief employed in defendant's mine in laying tracks in the lateral tunnels called "entries, " went into one of the entries where the miners were at work laying track, and was killed by falling slate and coal. In the roof of the entry was a large rock, and plaintiff's witness testified to seeing a large crack in the roof between the rock and the slate, but failed to report it, nor did he pay much attention to it, as a roof generally before it fell gave warnings by sound and small droppings of coal. An effort had been made several days before the accident, by deceased and others, to remove the rock, which was unsuccessful. No props were put under it before the accident, but it was propped afterwards. Defendant employed skilled operators, and the mines were carefully inspected every day before the miners were allowed to enter. In the early morning of the day of the accident, which occurred late in the afternoon, the inspector examined the entry in question, and reported it safe. The company's rules required the workmen whenever a roof appeared dangerous to take it down, and it appeared that the droppings were frequent, and when the miners were warned by the droppings they usually sprang out against the face of the walls, and escaped unhurt. Held, on a motion to set aside a verdict for plaintiff as being against the evidence, that the evidence failed to show negligence on the part of defendant, but that the injury resulted from a danger incident to the employment.

2. The declaration alleged that defendant, not regarding its duty, did not use proper care for the safety of deceased while he was engaged in working the said coal mines, and did not so operate the said mines as it reasonably might have done, so that deceased could safely work there, but wholly neglected so to do, and wrongfully and negligently permitted stones and slate and coal to hang loosely in and about the roof of the mines where deceased was at work for defendant, and where he was assigned to work by defendant, and negligently failed to provide said roof with sufficient props to keep the loose stones, etc., from falling on deceased. Held, that the negligence of defendant was sufficiently alleged.

3. It was not necessary for plaintiff to allege want of contributory negligence on the part of the

4. Under Code Va. 1887, § 3484, making the rules governing a demurrer to evidence applicable to a motion to set aside a verdict on the ground that it is against the evidence, in considering such a motion all the evidence on both sides is to be considered, and the moving party must be taken as admitting all that can reasonably be inferred from the evidence given by the other side, and as waiving all the evidence on his part which contradicts that of the other party, and all inferences from his own evidence, which do not necessarily flow from it.

May & May and Mr. Fulton, for plaintiff in error. Blair, Henry & Graham, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Tazewell county, rendered on the 11th day of June, 1888. The action was instituted against the plaintiff in error, the owner and proprietor of certain coal mines situated in the county of Tazewell, by the defendant in error for the negligent killing of his intestate while working as a laborer in said coal mines. Upon the trial in the court below the defendant demurred to the declaration, which demurrer the court overruled, and the defendant pleaded not guilty. Upon the trial instructions were asked for on both sides, but the court gave certain instructions asked for by the plaintiff, and rejected instructions asked for by the defendant, and the defendant duly excepted. The jury rendered a verdict for the plaintiff for $4,500, and the defendant moved the court to set aside the said verdict and grant it a new trial, but that motion the court also overruled, and rendered judgment in accordance with the said verdict, whereupon the case was brought here by writ of error.

The first error assigned here is the action of the court in overruling the demurrer to the declaration of the plaintiff, first, because the declaration does not allege negligence on the part of the defendant company. An inspection of the declaration shows a sufficient allegation of negligence. It says: "Yet the said defendant, not regarding its said duty, did not use the proper care for the safety of the said John Q. Andrew while he was so engaged in working the said coal mines, and did not so provide and operate said coal mines as it reasonably might have done, so that said John Q. Andrew could safely work therein while in the employment and service of the defendant, but wholly neglected so to do, and there and then wrongfully and negligently permitted stones, slate, and coal to hang loosely in and about the said coal mines, and in and about the roof of the divers entries in said coal mines, where the said John Q. Andrew was at work for the said defendant, and where he was assigned to work and service by the said defendant; and then and there negligently failed to provide the roofing of said coal mines with sufficient props and stays to keep the stones, slate, and coal that hung loosely in and about the said roofing from falling in upon said John Q. Andrew while he was at work for, " etc. There can be no question that the negligence of the defendant is here fully set out and alleged.

The second ground of exception to the declaration is that it does not allege a want of contributory negligence on the part of the plaintiff. This is not necessary, nor proper. In an action for damages occasioned by the negligence or misconduct of the defendant it is not necessary for the plaintiff to allege and prove the existence of the care on his part to entitle him to recover. If the defendant relies upon contributory negligence of the plaintiff to defeat the action, he must prove it, unless, indeed, the fact is discovered by the evidence of the plaintiff, or may be fairly inferred from all the circumstances. As proof of due care is not a part of plaintiff's case, it is, of course, not necessary he should aver it in his declaration. Railroad Co. v. Whittington, 30 Grat. 809; Kailroad Co. v. Gladmon, 15 Wall. 401; Shear & R. Neg. § 43. If the defendant relied on the contributory negligence of the plaintiff, it is matter of proof for him, either by testimony adduced by or as matter of inference deducible from the evidence of the plaintiff, but it is not the duty of the plaintiff to negative it by proof, and no part of his case to deny it in his declaration. In the case of Railroad Co. v. McKenzie, a late case in this court, reported in 81 Va. 78, Lewis, P., delivering the unanimous opinion of this court, used the following emphatic language: "If the defendant relied on the defense of contributory negligence, it was incumbent on it to prove it, and in the absence of satisfactory proof to establish such defense, the plaintiff must be presumed to have been without fault. This, indeed, is not disputed." It is true that some of the courts in some of the states have thrown this subject into some obscurity by conflicting and evasive decisions, as they are termed by Shearman & Red-field, and an interesting discussion of the subject and comparison of these decisions may bo found in their work on Negligence, § 43. But we do not consider it necessary to cite nor to discuss them. The subject is well settled here in this state upon what we consider the correct principle, that negligence on the part of the plaintiff is a mere matter of defense, to be proved affirmatively by the defendant, though it might, of course, be inferred from the circumstances proved by the plaintiff. This was the view held by Duer, J"., in Johnson v. Railroad Co., 5 Duer, 21, where he pointed out that parties were never required to prove negative matters of this kind, and that it had never been held necessary in a complaint upon negligence to aver that the plaintiff had taken due care. We are, however, cited by the counsel for the plaintiff in error to the case in this court of Railroad Co. v. Jackson's Adm'r, on the rehearing here, which is reported in 8 S. E. Rep. 370, as an authority per contra. The opinion in that case sets forth that it is not the opinion of the court, a majority of the court not concurring therein. It was written as the expression of the views of only the writer; and, moreover, the general rule is thus stated to be as set forth above: "The general rule undoubtedly is that the plaintiff need not aver and prove that he was not guilty of contributory negligence; but such defense, when relied on, must be proved by the defendant." That case being regarded as exceptional in character, the rule was thought to be different. Opinion of Lewis, P., 374. And so it is clear that this case is not ruled by that case otherwise than as we have held. We think the declaration is not defective, and that the demurrer thereto was properly overruled by the circuit court, and that there was no error in such action. See Improvement Co. v. Smith, 7 S. E. Rep. 365.

The next assignment of error here is as to the action of the court in instructing the jury as to the law of the case, upon the ground that the instructions ignore all evidence tending to show contributory negligence, and the law with respect thereto, and that they open the liability of the master without reference to modifying facts and circumstances showing the conduct of the servant which modifies the liability of the master. But while these instructions given to both sides are too voluminous to be inserted in an opinion, we will remark that the eighth instruction distinctly and very correctly meets this view. In part it is as follows: "If the jury shall believe from the evidence that the death of...