Va. & N. C. Wheel Co v. Harris

• Decision Date: 09 March 1905
• Citation: 49 S.E. 991,103 Va. 708
• Court: Virginia Supreme Court
• Parties: VIRGINIA & N. C. WHEEL CO. v. HARRIS.

49 S.E. 991

103 Va. 708

VIRGINIA & N. C. WHEEL CO.

v.HARRIS.

Supreme Court of Appeals of Virginia.

March 9, 1905.

master and servant—defective machinery —promise to repair—continuing service —pleading—demurrer—instructions.

1. A demurrer to an entire declaration, if one count is good, must be overruled.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 486, 487.]

2. Where a demurrer is to an entire declaration, the assignment of causes of demurrer applicable to both counts does not enlarge the scope of the demurrer.

3. A declaration, in an action for injuries, charging that it was defendant's duty to use ordinary care to furnish plaintiff with a reasonably safe saw, that defendant was informed of its defective condition and promised to fix it. but directed plaintiff to continue his work, and failed to fix it as promised, by reason of which plaintiff was injured, is sufficient as against a demurrer assigning as grounds that it is indefinite and does not set out the alleged cause of action with sufficient particularity.

4. Where the servant is induced to continue to operate defective machinery by the master'sorder, coupled with a promise to repair the defect, the question whether a continuance in the service and use of the defective machinery is such negligence as to bar a recovery is for the jury.

5. An averment that a master promised to repair machinery, but failed and "refused" to do so, is not inconsistent with the theory that the promise induced the servant to incur a known danger.

6. Where defendant in an action for injuries by a saw, introduced testimony that it was the track which caused the trouble, that it was fixed before the accident, and that another employe worked at the saw for six weeks after the accident, evidence showing the condition of the saw a week after the accident, and subsequent repairs, was admissible in rebuttal.

7. A instruction that if defendant promised to repair a saw, and failed to do so in a reasonable time, plaintiff would not be entitled to recover for that cause alone, but if afterwards plaintiff "failed to exercise the increased degree of care, in using the saw, demanded by the increased peril, the jury must find for defendant, " is properly modified by substituting, for the clause quoted, "failed to exercise such reasonable care an a prudent man would exercise under the same circumstances."

8. A requested instruction not warranted by the evidence is properly refused.

9. An instruction that if plaintiff complained of the defective condition of machinery, and defendant promised to repair, but failed to do so in a reasonable time, in consequence of which plaintiff was injured, the jury should find for plaintiff, unless he failed to exercise reasonable care, considering his experience, or unless the danger was so palpable that no one but a reckless person would expose himself to it, is not improper on the ground that it does not make the presence of danger a necessary element to a recovery, and does not state that plaintiff relied on the promise to repair.

10. In an action for injuries by a saw, an instruction that if defendant refused to repair the saw. or by its conduct gave plaintiff to understand that it did not intend to repair, plaintiff assumed the risk, is properly refused, as the presumption is that when a servant complains of defective machinery, which the master refuses to repair and directs him to proceed, unless the defect is so palpable that only a reckless man would use it, the servant may presume that the master considers it reasonably safe.

11. An instruction that if plaintiff knew the machinery was out of order, and reported it to the foreman, and it was repaired in plaintiff's presence, and he made no further complaint, to find for defendant, is properly refused, as ignoring the principle that the master's duty to use ordinary care to furnish reasonably safe machinery is personal and nonassignable.

Error to Circuit Court, Henrico County.

Action by one Harris against the Virginia & North Carolina Wheel Company. Prom a judgment for plaintiff, defendant brings error. Affirmed.

J. Alston Cabell and L. O. Wendenburg, for plaintiff in error.

H. A. Atkinson, Jno. A. Lamb, and Saml. A. Anderson, for defendant in error.

WHITTLE, J. The purpose of this writ of error is to review a judgment rendered in behalf of the defendant in error, Harris, against the plaintiff in error, the Virginia & North Carolina Wheel Company, in an action to recover damages for personal injuries.

There was a demurrer to the declaration, which contained two counts, and the action of the trial court in overruling the demurrer constitutes the first assignment of error.

Since the court is of opinion, for reasons to be stated presently, that the second count is sufficient to maintain the action, and as it appears that the evidence, both of the plaintiff and defendant, was addressed to the case made by the second count, it will be unnecessary to consider the alleged insufficiency of the first count.

It has long been the established rule of practice in this state that a demurrer to the entire declaration raises the question whether it sets out sufficient matter to sustain the action, and in such case, where there are several counts, one of which is good, the demurrer must be overruled. Roe v. Crutch-field, 1 H. & M. 361; Hollingsworth v. Milton, 8 Leigh, 50; Henderson v. Stringer, 6 Grat. 130; Wright v. Michie, 6 Grat. 354; Smith v. Lloyd, 16 Grat. 295; Wright v. Smith, 81 Va. 777; Gray v. Kemp, 88 Va., 201, 16 S. E. 225; Grubb v. Burford, 98 Va. 553, 37 S. E. 4.

The defendant seeks to escape the consequences of the above-mentioned rule by showing that the assignment of causes of demurrer applies to both counts of the declaration. But the office of the assignment is to indicate the grounds relied on, and not to enlarge the scope of the demurrer.

"Assigning special causes for demurrer does not make a demurrer special which is in its nature general." Miller v. McLuer, Gilmer, 338.

"A demurrer to a declaration, with a statement of special cause of demurrer that one of the counts, or breaches, or parts of the plaintiff's demand, of a distinct and divisible nature, is bad, does not alter the character of the demurrer, and, if there be matter enough in the declaration to maintain the action, the demurrer must be overruled." Henderson v. Stringer, supra.

The second count of the declaration, after stating the employment of the plaintiff by the defendant as a sawyer, alleges that it was the duty of the defendant to use ordinary, due, and proper care to furnish the plaintiff with a reasonably safe and proper saw with which to perform his work; and especially was it the duty of the defendant, when it found that the machinery was out of order, to have the same repaired, so that the plaintiff would not be injured while using it. The count then proceeds to charge that the defendant was informed that the saw in question was out of order and ought to be fixed, and promised the plaintiff to fix the same, but negligently, recklessly, and carelessly failed and refused to fix the same, and directed the plaintiff to continue to operate the saw. It further alleges that the defendant was a second time informed of the condition of the machine, and again promised the plaintiff to fix the same, and directed himto continue to use the saw, assuring him that the same would be fixed in a reasonable and proper time, upon which promise the plaintiff relied, and continued to operate the saw. Yet, it is said, the defendant, unmindful and disregardful of its duties and promises, negligently, recklessly, and carelessly failed and refused to fix the saw, as promised, in a reasonable and proper time, by reason whereof, while the plaintiff was operating the saw, and without any fault on his part, but because of the defective, insecure, and unsafe condition of the saw, he received the injuries complained of.

Summarized, the causes of demurrer assigned by the defendant in the trial court (and to which he must be confined in this court—Va. Code 1904, p. 1721, § 3271) are: First, that the declaration is vague and indefinite, and does not set out the alleged cause of action with sufficient particularity; and, second, that it seeks to hold the defendant responsible for obvious and known risks incident to the employment and assumed by the plaintiff, and to impose upon the defendant a higher degree of care than is required by law.

The count is plainly not amenable to the first objection. To the contrary, the facts which constitute the alleged cause of action are stated with sufficient certainty to be understood by the defendant, who has to answer them; by the jury, who are to inquire into their truth; and by the court, which is to render judgment Wood v. Am. Nat. Bk., 100 Va. 306, 40 S. E. 931.

The rule laid down in yet more recent cases is that the declaration is sufficient if it informs the defendant of the nature of the demand made upon it, and states such facts as will enable the court to say that, if the facts are proved as alleged, they establish a good cause of action. Hortenstein v. Va. Carolina Ry. Co., 102 Va. 914, 47 S. E. 996; Va. Portland Cement Co. v. Luck's Adm'r (Va.) 49 S. E. 577.

The second ground of demurrer involves the right of a servant to recover damages against the master for injuries occasioned by defective machinery, of which he has notice. The general rule is that a servant who continues the service with such knowledge, without complaint and without the promise of the master to repair the defect, cannot recover damages of the master for an injury received under such circumstances. But the rule is subject to the qualification that where the servant is induced to continue to operate the defective machinery by the order of the master, coupled with a promise to repair the defect, the master is liable, unless the danger Is so manifest that no prudent person would incur the risk. And, ordinarily, the...