Susan Barr^ Adm'x v. Knotts.

• Decision Date: 20 April 1926
• Docket Number: (No. 5559.)
• Citation: 101 W.Va. 440
• Court: West Virginia Supreme Court
• Parties: Susan Barr^ Administratrix, etc. v. Earl Knotts et al.,Partners, etc.

101 W.Va. 440

Susan Barry Administratrix, etc.

v.Earl Knotts et al., Partners, etc.

(No. 5559.)

Supreme Court of Appeals of West Virginia.

Submitted April 13, 1926.

Decided April 20, 1926.

1. Master and Servant Master Has Duty to Use Ordinary Care to Provide Reasonably Safe Working Place. Negligence in Performance of Duty to Provide Reasonably Safe Place is Generally Question for Jury.

It is the master's duty to use ordinary care and diligence to provide a reasonably safe place in which his servant is to work, considering the character of the work being performed; and whether the master has been negligent in the performance of that duty is generally a question for jury determination, under all the facts, circumstances, and inferences which may be reasonably drawn therefrom. (p. 443.)

(Master and Servant, 39 C. J. §§ 442, 1324.)

2. Trial In Considering Motion to Strike Out Plaintiff's Evi-dence and Direct Verdict for Defendant, Court Should be Guided by What Its Action Would be* if Jury Had Returned Verdict for Plaintiff and Motion Was Made to Set it Aside Because Not Warranted by Evidence.

In considering a motion to strike out plaintiff's evidence and direct a verdict for defendant, the court should be guided by what its action would be if the jury had returned a verdict for plaintiff and a motion was made to set it aside because not warranted by the evidence. (p. 444.)

(Trial, 38 Cyc. p. 1571.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Tucker County.

Trespass on the case by Susan Barr, administratrix of the estate of Frank Barr, deceased, against Earl Knotts and others, partners under the firm name of Knotts Bros., to recover for her husband's wrongful death. Judgment for the defendants and plaintiff brings error.

Judgment reversed; verdict set aside; new trial awarded..

C. 0. Strieby, for plaintiff in error.

J. W. Harman, for defendants in error.

Lively, President:

This is an action of trespass on the case brought by the administratrix of the estate of Prank Barr to recover damages for her decedent's wrongful death while in the employ of defendants, Earl, Claude and Wilbur Knotts, Upon motion of defendants, the trial court struck out the plaintiff's evidence, directed the jury to find for defendants, and entered up judgment of nil capiat, This writ followed.

Defendants, under the firm name of Knotts Brothers, were engaged in the logging business, employing three crews of men to carry on this work. In June, 1928 the date of the accident resulting in his death Frank Barr was a member of one of these logging crews which also included Earl Knotts (one of the defendants) and Mike Likens. Barr and Knotts were sawing the timber, while Likens went ahead with an axe and "notched" the trees in preparation for the sawyers, and ascertained if there was any danger in felling the timber. Barr was a young man, about twenty-two years of age, and while it appears from the record that he had worked in the woods, the extent of his experience in that work, particularly in the felling of trees, does not appear.

Likens was the only eye-witness of the accident testifying for the plaintiff. According to his evidence, while "chopping for the saw", he approached a rock oak tree to prepare it for the cross-cut sawmien. He noticed an old dead hickory standing so close to the oak that it ran up through the limbs of the latter tree, but he didn't at that time see any limbs on the dead hickory. After having "notched" the oak he proceeded to another tree. Just as the sawyers were completing their work on the rock oak, Likens, who was about thirty feet away, turned as he heard the cracking noise made by the tree in its fall, and as he did so he noticed two rather large limbs falling from the dead hickory which were broken loose by the crashing oak. The witness shouted two warnings to the sawmen. Both of them evidently heard his second outcry, and Knotts sprang out of danger; but Barr paused momentarily to see what was coming, whereupon he was struck on the head and fatally injured by a limb about fourteen feet in Length and the size of a man's arm in thickness, which had fallen from the dead hickory.

We are met at the threshold by the defendants' contention that this case cannot be reviewed, because the order overruling the motion for a new trial does not show an exception to the ruling of the court. The order does fail to note such an exception by plaintiff, but her Bill of Exceptions No. 1 contains the following: "* * * and thereupon the plaintiff moved the court to set aside the said verdict as being contrary to law and evidence, and grant her a new trial; that upon mature consideration of the said motion to set aside the verdict and grant a new trial the Court overruled the same, and refused to grant a new trial, to which action of the Court said plaintiff excepted, * * *" The bill of exceptions is a part of the record, and thus it appears from the record that an exception was taken to the ruling of the court at the time it (the ruling) was made. In the case of Congrove v. Burdett, 28 W. Va. 220, it was said: "If the record shows that the motion was made, overruled and excepted to, this is sufficient and all that the rule declared by this court in any of its decisions requires. * * * If the fact appears that such motion was made, overruled and excepted to appears in the orders or judgment of the court, or in any other proper manner by the record, the appellate court will review any rulings of the inferior court made during the trial, which are properly saved and presented by the record. In the case before us there is a bill of exceptions showing that the plaintiff in error made his motion for a new trial in the court below, that said motion was overruled and he excepted to said ruling. The case is therefore clearly within the rule, and the rulings of the circuit court were properly brought before this court for review." And in ...