Va. Iron v. Tomlinson

• Decision Date: 28 June 1905
• Citation: 51 S.E. 362,104 Va. 249
• Court: Virginia Supreme Court
• Parties: VIRGINIA IRON, COAL & COKE CO. v. TOMLINSON.

104 Va. 249

51 S.E. 362

VIRGINIA IRON, COAL & COKE CO.

v.TOMLINSON.

Supreme Court of Appeals of Virginia.

June 28, 1905.

1. Expert Evidence—Matters of Common Knowledge.

Upon the question as to whether it was dangerous for a boy 12 years old to attempt to start a belt operating machinery by swinging over a sill above the belt by his hands, and tramping upon the belt with his feet, the jurors were as competent to form an opinion as the witnesses, and hence expert testimony that such method of starting the belt was dangerous was inadmissible.

2. Expert Witnesses—Competency.

The decision of the trial court as to the qualification of an expert witness will not be reviewed unless it clearly appears that the witness was not qualified.

3. Master and Servant—Failure to Warn Infant Servant—Evidence.

In an action for the death of an infant servant injured while working about certain machinery, evidence that children were permitted by defendant to go about the place where deceased was killed was admissible; but evidence that children were permitted to go in other dangerous places was not competent to show that defendant had failed to instruct children as to the dangers attending their employment, or had given general permission for them to go into dangerous places.

4. Same.

In an action for the death of an infant servant, in which it was charged that the master had not given warning of danger, evidence by other employés that they had never heard the foreman give any instruction to any one as to the danger was not admissible.

5. Same—Contributory Negligence.

In an action for the death of a servant less than 12 years of age, an instruction that if deceased, without being ordered to do so, left the place at which he was assigned to work, and went in proximity to the cogwheels where it was alleged he was injured, for any purpose not connected with the performance of his duty, defendant was not liable, was properly refused: it being presumed that deceased was not guilty of contributory negligence.

6. Same—Contributory Negligence of Parent—Consent to Employment.

Where the death of an infant was caused by the negligence of his employér, the fact that the infant's father consented to the employment did not defeat his right to recover.

7. Same—Precise Cause of Injury—Necessity of Proof.

Where, in an action for the death of an infant, there was direct evidence tending to show that defendant was negligent in failing to properly warn decedent of the danger, and in requiring him to perform dangerous work not within the scope of his employment, it was proper to instruct that plaintiff might recover, if the jury believed that the death was caused by defendant's negligence, although plaintiff had not proven the exact way in which deceased was killed.

8. Same—Pleading.

Where, in an action for the death of a servant, the declaration alleged that defendant negligently employéd deceased in a dangerous place and in a dangerous occupation, in that it required him to start certain machinery when it stopped, in discharging which duty deceased necessarily came into proximity with the cogwheels which caused his death, plaintiff was entitled to prove that the work of starting the machinery was beyond the scope of decedent's employment.

9. Same—Evidence—Question for Jury.

In an action for the death of a servant killed by being caught in the cogwheels in a buddle, evidence held sufficient to justify submission to the jury of the issue of defendant's negligence.

10. Same—Amount of Care Required.

A master is required to exercise only ordinary care for the safety of his servants, although the amount of care necessary to constitute ordinary care may vary with circumstances, and it is error to instruct that the law requires of a master the highest degree of responsibility for the care and protection of an infant employé.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 139, 14].]

Appeal from Circuit Court, Wythe County.

Action by the administrator of Vivian P. Tomlinson, against the Virginia Iron. Coal & Coke Company. From a judgment for plaintiff, defendant appeals. Reversed.

P. H. C. Cabell and Fulton & Fulton, for appellant.

A. A. Campbell and Robt. Sayers, Jr., for appellee.

BUCHANAN, J. Vivian P. Tomlinson, an infant aged 11 years and 6 months, lost his life whilst in the service of the Virginia Iron. Coal & Coke Company, and this action was instituted by his personal representative (his father) to recover damages on the ground that his decedent's death was caused by the negligence of the defendant company.

Upon a trial of the cause there was a verdict and judgment against the defendant company, and to that judgment this writ of error was awarded.

It appears that the defendant company was the owner and operator of machinery called a "buddle." used for the purpose of separating iron ore from the dirt and other impurities found with it. The buddle is located on the side of a hill, and is a structurein which there are three stories or levels. The ore is brought on small cars from the mine to the upper story or level of the huddle, where it is dumped into washers. The washers consist of logs with paddles attached, incased in closed boxes into which water flows. The logs are made to revolve by means of a gearing consisting of pinions, cogwheels, and belts driven by a steam engine. The paddles upon the revolving logs keep the ore pushed toward one end of the washer, and the mud and water pass out at the other end.

The washers are covered over, and their covering makes, or aids in making, the second level of the buddle. From the washers the ore passes into a screen through which water also passes, and from the screen the ore is carried through a chute into cars underneath the first or ground level. Steps lead from one level of the buddle to another.

The plaintiff's intestate was employéd, with the consent of his father, to work at the chute on the bottom floor or level; his duty being to pick mud balls and other substances from the iron ore as it passed through the chute. Near the decedent's place of work was the gearing of the sand washer, with its cogwheels, pinions, pulleys, and belt, but not sufficiently close to endanger his safety whilst engaged in the work he was employéd to do. He had been at work at this place for about six weeks prior to his death, which occurred on the 10th day of December, 1903, a few days before the wise and humane statute went into effect which makes it a misdemeanor to employ children under 14 years of age in such work. Va. Code 1904, § 3657bb.

On that day, a few minutes before the buddle was stopped for the employés to get their dinner, he was found crushed to death between the cogwheels (one of which is 34 inches in diameter) of the sand washer. There is no direct evidence as to the manner in which he came in contact with the cogwheels and lost his life.

One of the theories of the plaintiff as to the manner in which the accident occurred, and the one principally insisted upon, is that the belt on the sand washer was slipping, as it sometimes did, and that the decedent, who had been directed by the foreman of the buddle to start the belt when it stopped, was attempting to start it by catching hold of the sill to which the roof was fastened, swinging over and tramping upon the belt with his feet, and that while engaged in this effort to start the belt he fell or was thrown between the cogs below, and very near where he was killed, and that such mode of starting the belt was not only dangerous, but beyond the scope of the decedent's duty, and that the decedent was not warned of the danger.

To show that such a method of starting the belt was dangerous, several witnesses were permitted to give opinion evidence to that effect over the defendant company's objection. This action of the court is assigned as error.

The facts disclosed by the record show that such a mode of starting the belt, especially by a child 11 1/2 years of age, was manifestly dangerous. At least, the facts were of such character that jurors and men of ordinary intelligence generally would be just as competent to form an opinion and determine whether or not that mode of starting the belt was dangerous as the witnesses. This being so, opinion or expert evidence was not admissible. Such evidence, as a rule, is not admissible where the facts already before the jury, or which may be sufficiently brought before it, furnish all the materials necessary for its judgment. Southern Ry. Co. v. Mauzy, 98 Va. 692, 37 S. E. 285; 1 Wigmore on Ev. § 557. But while the evidence under consideration was not admissible, it was harmless error. Lane Bros. v. Bauserman. 103 Va. 146, 48 S. E. 857.

The trial court, over the defendant company's objection, permitted the plaintiff to testify that, when the buddle is overloaded and the belt is properly laced, the belt will not stop, but the overloading will either break the belt or some other part of the machinery. One objection made to this evidence was that it was not shown that the witness was an expert.

The qualification of a witness to testify as an expert being largely in the discretion of the trial court, its admission of such testimony will not be reviewed unless it clearly appears (as it does not in this case) that the witness was not qualified. Lane Bros. v. Bauserman. supra; Richmond Locomotive Wks. v. Ford, 94 Va. 627, 27 S. E. 509.

The other objection was that, even if the witness were an expert, the questions asked called for his opinion upon a hypothetical condition of facts which were not proved in the case.

There was evidence tending to prove the facts hypothetically stated, and the questions were not, therefore, objectionable on that ground.

The court permitted the plaintiff to prove that boys working about the buddle rode back and forth on the cars upon which the ore was hauled from the mine, with the knowledge of, and without objection by, the defendant company. This evidence was objected...