Stewart v. Ohio River R. Co.
| Decision Date | 02 February 1895 |
| Citation | 40 W.Va. 188 |
| Court | West Virginia Supreme Court |
| Parties | Stewart v. Ohio River R. Co. |
1.Master and Servant Ordinary Hazard.
When a servant enters into the employment of a master, he assumes all the ordinary hazards incident to the employment, whether the employment be dangerous or otherwise.
2. Master and Servant Negligence Employment.
The test of liability is the negligence of the master, not the danger of the employment, though the danger of the employment may determine the ordinary care required in the case.
3. Master and Servant Negligence.
The mere fact of injury received raises no presumption of negligence on the part of the master.
4. Master and Servant Contributory Negligence.
When a servant willfully encounters dangers which are known to him, the master is not responsible for an injury occasioned thereby.
5. Master and Servant 'Diligence and Care.
A servant having knowledge of danger about him must use diligence and care in protecting himself from harm.
6. Master and Servant Patent Risks.
An employer does not impliedly guarantee the absolute safety of his employes. In accepting an employment, the latter is assumed to have notice of all patent risks incidental thereto, or of which he is informed, or of which it is his duty to inform himself, and he is further assumed to undertake to run such risks.
Vinson & Thompson for plaintiff in error, cited 36 W. Ya. 397; Bish. Non-Cont. Law, § 665; 100 U. S. 213; 129 Mass. 268; 45 Am. Rep. 598.
W. W. Marcum and Marcum. Peyton & Marcum for defendant in error, cited 30 W. Va. 798.
This was an action of trespass on the case brought on the 17th day of June, 1893, in the Circuit Court of Wayne coun ty, by T. H Stewart against the Ohio River Railroad Company, to recover ten thousand dollars damages, to which the plaintiff claimed to be entitled by reason of injuries received by him in consequence of being thrown from a hand car on which he was riding and helping to operate, which accident he claims was caused by the negligence of the section foreman, who was riding on the same hand car, in suddenly applying the brakes, thereby causing said hand car to suddenly stop, which resulted in throwing the plaintiff off in front of the hand car, and in his being run over thereby. The de fendant pleaded not guilty, and issue was thereon joined, and the cause was submitted to a jury, and after all the evidence was heard the defendant demurred thereto, and the plaintiff joined therein, and the jury, in pursuance of the direction of the court, ascertained the plaintiff's damages to be five thousand dollars, subject to the opinion of the court upon the defendants demurrer to the evidence; and upon consideration the court overruled said demurrer, and the defendant also moved the court to set aside said verdict and finding of the jury, because the damages assessed were excessive and not warranted by the evidence; which motion the court overruled, and the defendant excepted, and judgment was rendered upon said verdict, and the defendant obtained this writ of error.
It appears from the testimony in the case that the plain- tiff had been in the employ of the defendant company a month, or a little over, as a section hand, and that he and other hands were in the habit of traveling to and from their work on the track with Mr. Ellis, the section foreman.
On the occasion when this injury was sustained, the section hands had finished their day's work, and seven of them, including the foreman, Ellis, got upon the hand car to return to the tool house. It was their custom to. start from this tool house in the morning and return to it in the evening, and the plaintiff was in the habit of assisting at. the levers in propelling the car.
According to the plaintiff's own statement as to his position on the hand car when it started for the tool house on that evening, he was in the center of the car. His heels were kind of over the edge, for he lost his balance, and didn't have any chance to support himself, and fell in front of the hand car. He was riding backwards, and, at the time he fell off, was helping to run the car, and had hold of the lever, and when asked, "Did you see Mr. Ellis at the time he put the brake on?" answered, "I may have seen him, but don't remember it." The plaintiff further states that he was riding in front of the center, the brake was on the right-hand side, and the foreman, Ellis, was in an arm's reach of him. The brake was applied by pressing the foot upon the lever, and in answer to the question, "Where was the car, with reference to the tool house when Mr. Ellis applied the brake?" the plaintiff stated that the car had got past the tool house when he put the brake on. He knew it was the intention to stop the hand car at the tool house when they started home from their work; he was standing in such a position that he could see the movements of the foreman, Ellis, and had hold of the lever.
For eight or ten days he had been going out with this gang of section hands from the tool house in the morning and returning to it in the evening, and, knowing that the car was to be stopped at the tool house, what was the necessity for the foreman, under these circumstances, to announce the fact that he was going to apply the brakes, having arrived at the tool house, and all hands being aware that it. was the custom and intention on that occasion to stop there? It must be presumed the men stopped working their levers, and, in fact, J. W. Henderson, a witness for the plaintiff, when asked who stopped the car, answered, And in reply to the question, "Did he [meaning Ellis] give any warning to the crew that he was going to stop her?" stated, ...
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