Walls v. McKinney, 10581
| Decision Date | 18 May 1954 |
| Docket Number | No. 10581,10581 |
| Parties | WALLS, v. McKINNEY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. 'Generally, it is a master's duty to provide his servants reasonably safe and suitable tools and appliances sufficient for the work intended, and the servant may assume that the master has performed that duty; and whether the master has been negligent in that duty is generally a question for the jury under all the facts and circumstances.' Point 4, Syllabus, Estep v. Price, 93 W.Va. 81 .
2. An employer engaged in a business, intermittent in its operation, who has an employee paid in part on an hourly wage basis and on a piece work basis, the employee working six days a week and being paid at regular periods of two weeks, is subject to the Workmen's Compensation Statutes, and upon his failure to qualify under such statutes, he is precluded from his common law defenses of contributory negligence and assumption of risk in an action against him by an injured employee.
3. . Point 2, Syllabus, Waldron v. Garland Pocahontas Coal Co., 89 W.Va. 426 .
Fletcher W. Mann, Beckley, R. D. Bailey, Pineville, for plaintiff in error.
D. Grove Moler, Mullens, for defendant in error.
This action was brought by Dell Walls in the Circuit Court of Wyoming County, against Ray McKinney, to recover damages for an injury suffered by the plaintiff while driving a truck belonging to the defendant. The parties hereto will be designated as they stood in the Circuit Court.
A jury trial was had, which resulted in a verdict for $1,000 in favor of the plaintiff, and the trial court, after overruling the motion to set aside the verdict, entered judgment for that amount. The defendant prosecutes a writ of error to this Court.
The plaintiff worked for the defendant in two capacities: As a sawyer and as a truck driver, transporting certain mine props and sawed timber from the saw mill owned by the defendant to a coal mine at Otsego, West Virginia. The plaintiff received the sum of $.85 per hour while working as a sawyer and the sum of $4 per load for hauling mine props and $5 per load for hauling sawed timber from the sae mill to the mine.
The plaintiff had been driving a certain truck belonging to the defendant for approximately two years and using it in transporting the mine props and sawed timber from the defendant's saw mill to the Mine. The truck used by the plaintiff on the day of the accident had been repaired about two weeks previously by relining the brake of the truck, such repair work having been done by the plaintiff and defendant. The plaintiff testified that he had notified the defendant of the defective service brake of the truck and that the emergency brake was inoperative. He further testified that sometime prior to the accident he had received from the defendant a can of brake fluid which he had applied to the hydraulic brake of the truck.
On the day of the accident, the defendant was in Tazewell, Virginia. On that day the plaintiff drove the truck to the saw mill and loaded approximately 450 mine props on the truck and started on his way to the Otsego Mine.
In the course of that journey, the plaintiff drove down a very steep hill which had a grade of approximately 22%, on a small portion thereof. He safely descended the first hill, which is described in the record as having various lengths. It is probably safe to say that the first hill was approximately one-half to three-fourths of a mile in length, but it was only a small portion of that length on which the steep grade existed.
After descending the first hill, he reached the level portion of the highway. He stopped twice during the course of the journey and before the accident. At one of these stops, he picked up his stepson and another person to ride with him. At each stop the plaintiff testified that he was compelled to 'pump' the brake, evidently meaning that he had to manipulate the brake by pressing on the brake pedal. After he arrived near the scene of the accident, he proceeded up a hill in low gear until he reached the crest of that hill, when he shifted from low gear to a higher gear. When he started down that hill, the service brake failed. He directed his stepson and the other passenger to jump from the truck, which they did, thus avoiding injury. He rode in the truck a short distance further, when he jumped from the truck. The truck proceeded a short distance further when it went over the bank at a curve and was completely demolished.
In jumping from the truck, the plaintiff suffered a broken right arm, bruises and contusions, and injuries to his teeth which resulted in the loss of three of them.
It is to be noted that the hill where the accident occurred had a grade of approximately 6%.
The plaintiff testified that he was employed regularly by the defendant. The defendant, on the contrary, testified that the employment was irregular, and that he only used employees at the mill when it was necessary to operate the mill, and that it operated at irregular intervals.
The plaintiff and defendant testified that they had entered into a verbal agreement whereby the plaintiff would have possession of the truck for the purpose of hauling props and sawed timber as hereinabove stated. Plaintiff was to haul timber when the mill was not operating and at any hour he chose, but he was required to haul in accordance with the needs of the Otsego Mine and the contract defendant had with such mine. Plaintiff retained full possession of the truck, but defendant supplied the gas, oil and kept the vehicle in repair. Plaintiff and defendant further testified that by this verbal agreement, either party could end the contract at any time.
The case seems to have been tried on the theory that the defendant was deprived of the common law defenses of contributory negligence and assumption of risk, as provided by Chapter 131, Article 2, Section 8, Acts of the Legislature, 1945, Regular Session.
Defendant contends (1) that the record does not show any primary negligence on the part of the defendant; (2) that he is not barred under the above cited provisions of the Workmen's Compensation Statutes of his defenses of contributory negligence and assumption of risk; (3) that the plaintiff when injured was an independent contractor and not an employee of the defendant; (4) that the trial court committed error in refusing certain instructions offered by the defendant; (5) that the trial court likewise erred in permitting the plaintiff to reopen his case twice after having rested and refused to require plaintiff to join in a demurrer to the evidence.
Three controlling questions are presented by the record in this case: (1) Was the defendant negligent? (2) Was the employment of plaintiff subject to the provisions of the Workmen's Compensation Statutes? (3) Was the plaintiff an employee of the defendant or an independent contractor?
We discuss these questions in the order stated. It is the duty of a master to use ordinary care, to provide safe machinery, tools and appliances and to keep them in such condition. See Cooley on Torts, page 508. The master is liable for negligence in failing to use due care to furnish his employee reasonably safe machinery and appliances and notwithstanding that the employee knew of the danger and with such knowledge used such machinery in the course of his employment, the master is liable. Smith v. Morrison, 120 W.Va. 481, 199 S.E. 689. 'Generally, it is a master's duty to provide his servants reasonably safe and suitable tools and appliances sufficient for the work intended, and the servant may assume that the master has performed that duty; and whether the master has been negligent in that duty is generally a question for the jury under all the facts and circumstances.' Estep v. Price, 93 W.Va. 81, 115 S.E. 861, 862. See Wilkin, Adm'r v. H. Koppers Co., 84 W.Va. 460, 100 S.E. 300; Robinson v. Virginia Pocahontas Coal Co., 78 W.Va. 94, 88 S.E. 620; Chandler v Car & Foundry Co., 69 W.Va. 391, 71 S.E. 387; Denny v. American Car & Foundry Co., 69 W.Va. 405, 71 S.E. 706; Soward v. American Car & Foundry Co., 66 W.Va. 266, 66 S.E. 329; Giebell v. Collins Co., 54 W.Va. 518, 46 S.E. 569.
The defendant was under the duty to equip his truck with proper brakes and such duty is nonassignable. Aronovitch v. Ayers, 169 Va. 308, 193 S.E. 524.
This record shows that the truck belonged to the defendant and that under the oral agreement with the plaintiff, it was his duty to keep it in repair. Though there is a dispute as to whether the defendant furnished a can of brake fluid to the plaintiff, the jury having found for the plaintiff, we treat the testimony of the plaintiff as being true. Meyn v. Dulaney-Miller Auto Co., 118 W.Va. 545, 191 S.E. 558; Wiseman v. Ryan, 116 W.Va. 525, 182 S.E. 670. Applying that principle, the defendant attempted to repair the brake by relining it and he attempted to remedy the defective brake by furnishing a can of brake fluid. Notwithstanding this action on the part of the defendant, the truck brake failed on the trip when the plaintiff was injured. True, the brake evidently held the truck...
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