Trump v. Tidewater Coal & Coke Co
| Decision Date | 01 April 1899 |
| Citation | 32 S.E. 1035,46 W.Va. 238 |
| Court | West Virginia Supreme Court |
| Parties | TRUMP. v. TIDEWATER COAL & COKE CO. |
Pleading — Demurrer — Motion to Exclude Plaintiff's Evidence—Waives—Appeal— Record—Review.
1. A declaration contains several goo.', causes of action, some of which are defectively stated. The demurrer thereto is properly overruled.
2. Such technical defects to good causes of action may be cured by the evidence, unless proper objection to the admission of such evidence, or motion to exclude the same, is made in due time.
3. A motion to exclude the plaintiff's evidence for insufficiency is waived by the defendant after such motion is made introducing his evidence, as his evidence may cure the defects in the plaintiff's.
4. Instructions copied into the record, but not in some manner made a part thereof, will not be considered by this court 5. This court will refuse to disturb the verdict of a jury sustained by the judgment of the circuit court, if it be a matter of doubt as to whether the same is opposed to the plain and decided preponderance or weight of the evidence. In cases of doubt, the benefit is given to the judgment of the lower court.
(Syllabus by the Court.)
Error to circuit court, McDowell county; R. C. McClaugherty, Judge.
Action by Pred Trump, by Lucy A. Dillon, his next friend, against the Tidewater Coal & Coke Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.
Rucker, Keller & Hamill, for plaintiff in error.
I. C. Herndon and Chapman & Gillespie, for defendant in error.
DENT, P. In the case of Pred Trump, etc., against the Tidewater Coal & Coke Company, being a writ of error from a judgment of the circuit court of McDowell county in favor of the plaintiff for the sum of $510, the defendant relies on the following assignment of errors: First, the overruling of the demurrer to the declaration; second, not sustaining the motion to strike out plaintiff's evidence; third, an erroneous instruction given; fourth, overruling the motion to set aside the verdict as contrary to the law and evidence.
The declaration, as set out, appears to be amply sufficient to satisfy the requirements of section 29, c. 125, Code, and the former decisions of this court. There is nothing omitted therefrom ''so essential to the action that judgment according to law and the very right of the cause cannot be given." Davidson v. Railway Co., 41 W. Va. 407, 23 S. E. 593; Poling v. Railroad Co., 38 W. Va. 64.5, 18 S. E. 782; Berns v. Coal Co., 27 W. Va. 289; Hawker v. Railroad Co., 15 W. Va. 628. The objections urged are purely technical and fine spun, and certainly fail to show that the defendant was taken by surprise. The allegation that the defendant "negligently and wrongfully failed to provide a reasonably safe place to work" is stronger than if it used in lieu thereof, "failed to use ordinary care, " as the former expression necessarily includes the latter. To negligently and wrongfully fail to do anything is to fail to use ordinary care in doing it. The declaration is undoubtedly good in so far as it charges failure to furnish a safe place to work and to furnish safe machinery, and the court did not err in overruling the demurrer. Wheeling v. Black, 25 W. Va. 266; Robrecht v. Maiiing's Adm'r, 29 W. Va. 765, 2 S. E. 827. Nor is it insufficient in that it fails to allege that the boy did not possess the necessary experience, knowledge, and skill to appreciate and guard himself against the increased danger; for it does allege that, after he was directed to do more dangerous work than that for which he had been employed, the defendant wrongfully and negligently "failed to instruct, caution, and direct the plaintiff in discharge of the said diity." From these allegations the experience of the plaintiff is a plain inference; for otherwise it would not be wrongful or negligent for defendant not to so caution and instruct plaintiff as to his new duties. Taking the allegations of the declaration as true, defendant is certainly liable thereunder. Berns v. Coal Co., 27 W. Va. 289. A general demurrer to a declaration stating several causes of action, all of which are good, but some of which are stated defectively by mere technical omission, must be overruled. And, if the defendant desires to take advantage of such technical imperfections in the declaration, he must do so...
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