Wellman v. Fordson Coal Co.
| Decision Date | 24 April 1928 |
| Docket Number | 6188. |
| Citation | 143 S.E. 160,105 W.Va. 463 |
| Parties | WELLMAN v. FORDSON COAL CO. et al. |
| Court | West Virginia Supreme Court |
Submitted April 17, 1928.
Syllabus by the Court.
One in possession of a dangerous instrumentality must use due care and prudence to avoid injury to others. His responsibility is no whit changed by delegating the handling of the instrumentality to his servant. The master is deemed constructively present, and if the servant in the prosecution of his task negligently causes injury to another, the master is accountable as for his own act or omission.
The test of a master's responsibility for the conduct of his servant is not whether the servant deviated from or exceeded his authority, but whether the negligence occurred in the prosecution of the master's business.
It is common information that powder is very attractive to immature children, and that if opportunity is presented they may be expected to meddle with it. The law charges one in possession of powder with this information, and imposes on him the highest degree of care to protect children from injury when the powder is accessible to them. Failure to exercise such care, resulting in injury, will impose liability.
The acts of irresponsible children directly contributing to an injury from the use of powder do not constitute such intervening cause as will excuse primary negligence by one in charge thereof.
Children who have knowingly been permitted for several years to play at a place which is not inclosed and to which they have easy access cannot be considered as trespassers there.
Error to Circuit Court, McDowell County.
Action by Dave Wellman, administrator of Howard Wellman, deceased against the Fordson Coal Company and another. Judgment for plaintiff, and defendants bring error. Affirmed.
W. R Middleton, of Detroit, Mich., and Strother, Sale, Curd & Tucker, of Welch, for plaintiffs in error.
Harman & Howard, of Welch, for defendant in error.
This is an action for the wrongful death of Howard Wellman, in which the plaintiff, as his administrator, recovered a joint judgment against the Fordson Coal Company and McKinely Rose.
The evidence favorable to the plaintiff (which we must accept since the verdict of the jury is for him) is as follows: The plaintiff, who was the father of the decedent, was an employee of the company, and as such occupied with his family one of the company's dwelling houses; across a bridge on the opposite side of the river from his house was the incline of defendant's mine; close to the incline was a small house, in which the daily supply of powder for the mine was kept; some 60 feet from the incline was a sand bin. About 8:30 one night in January, 1927, while Rose and Lee Lane employed by the company as common laborers, were near the incline loading supplies on cars to be taken to the mine, the decedent (11 years old), his brother Pat (13 years old), and Clifford Thomas (13 years old), were playing at the end of the bridge near the supply house, where they often played; Rose asked them to get the powder out of the supply house so it could be loaded on the cars, which they did; as they were carrying out the powder one of the kegs was dropped and bursted; Pat called to Rose, who was working at the sand bin, that one of the kegs was bursted, and Rose replied that it was all right; the boys then secured some powder from the broken keg, left without the men seeing them again, returned across the bridge to Clifford's yard, and while they were playing with the powder by throwing it on a fire Howard received burns from which he died.
The evidence also shows that Howard was brighter than the average 11 year old boy, being in the same grade at school as his brother Pat; that the boys had lived around the mines practically all of their lives; that they understood the use of powder and knew that it would flash and burn, though none of them possessed any personal experience with it; that the company stored the powder under lock at all times; and that it was contained in the safest kind of kegs.
The legal principles applicable to these facts are thoroughly established. They are maxims of the common law. One in possession of a dangerous instrumentality must use due care and prudence to avoid injury to others. Sic utere tuo ut alienum non laedas. His responsibility is no whit changed by delegating the handling of the instrumentality to his servant. Qui facit per alium, facit per se. The master is deemed constructively present, and if the servant in the prosecution of his task negligently causes injury to another, the master is accountable as for his own act or omission. Respondeat superior. 18 R. C. L. 786, 787; 39 C.J. p. 1289, § 1486; Annotation, 10 L. R. A. (N. S.) page 368; Jenkins v. Montgomery, 69 W.Va. 795, 72 S.E. 1087.
Here the handling of powder, an extremely dangerous instrumentality, was delegated by the defendant company to its servants, Lane and Rose. In the presecution of their task these servants negligently caused or permitted (it makes no difference which) these children to have an opportunity to secure some of the powder. That powder brought about the death of plaintiff's intestate. Why, therefore, should not the defendant company respond in damages?
The company says that Lane and Rose had no authority to summon or permit the children to help handle the powder. Lack of authority makes no difference in such case. The test of the company's responsibility for the conduct of its servants is not whether they deviated from or exceeded their authority, but whether the negligence occurred in the prosecution of the company's business. It was the company's business to have the powder transported to the mine. That transportation was intrusted to Lane and Rose. The children were permitted by them to come in contact with the powder while it was being transported. Consequently the negligence of the servants occurred while they were directly engaged in the company's business.
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