Wilkinson v. Kanawha & Hocking Coal & Coke Co.
| Citation | 61 S.E. 875,64 W.Va. 93 |
| Parties | WILKINSON v. KANAWHA & HOCKING COAL & COKE CO. |
| Decision Date | 17 March 1908 |
| Court | Supreme Court of West Virginia |
Rehearing Denied June 10, 1908.
Syllabus by the Court.
The declaration charged it was defendant's duty to have a careful and competent person "to operate the knuckle where the cars were let down from the mine entry to the tipple below," but that, not regarding such duty, it employed "a totally incompetent and irresponsible boy of the tender age of 15 years to operate said knuckle and levers necessary to operate said knuckle in letting down said cars off the hill." The evidence showed the word "knuckle" was sometimes used as an inclusive term to embrace the drumhouse and all appurtenances at the head of the incline, but that the boy was employed simply to operate the chock blocks immediately at the knuckle, and that he was 15 years and 4 months old. The word "knuckle" was employed in the declaration in its restricted sense. There was no material variance.
An infant, after reaching the age of 14 years, is presumed to have sufficient discretion and understanding to be responsible for his wrongs, to be sensible of danger and to have power to avoid it.
[Ed Note.-For cases in point, see Cent. Dig. vol. 37, Negligence § 223.]
As a general rule, after a boy has reached the age of 14 years, courts do not permit juries to presume his incompetent for the duties of a particular employment, because of minority alone; and, when over that age, the burden of proof is upon the one alleging incompetency.
A jury cannot decide a person unfit for his employment on account of what they see or suppose they see or can read in his face and manner while testifying before them.
A case where the evidence failed to establish incapacity of a minor employé over 15 years of age, and negligence in his employment and retention.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 978-980.]
The fact that other servants are competent will not excuse a master in employing an incompetent person to perform a particular service, although in conjunction with such competent fellow servants.
Error to Circuit Court, Kanawha County.
Action by William B. Wilkinson, administrator, against the Kanawha & Hocking Coal & Coke Company. Judgment for plaintiff and defendant brings error. Reversed, and new trial granted.
Brown, Jackson & Knight, for plaintiff in error.
E. B. Dyer and J. W. Kennedy, for defendant in error.
The coal from defendant's mine No. 117 at Glen Ferris in Fayette county is brought out on cars of 2 tons' capacity, drawn by mules, over tracks distributed through the mine and extending out over a horizontal plane, whence the cars are let down in pairs over parallel tracks built upon an incline to a tipple at the railroad below, a distance of 1,200 feet. The point at which the incline begins is called the "knuckle," from its resemblance to a bent finger. The mechanism employed to lower the loaded cars and elevate the empty ones consists of a large drum, around which is wound a wire rope in opposite directions, the weight of the loaded cars on one track pulling the empty ones up on the other, their movement being regulated by a brake, controlled by one designated as "drum runner." At the knuckle is a mechanism designed to prevent the loaded cars brought out of the mine from going over the knuckle until the drum rope is attached. This consists of iron "chock blocks" 3 feet long, 3 inches wide and 5 inches high, one for each rail of the double track, operated on pivots and so connected that they can simultaneously be thrown over the rails by means of one lever. The device is simple, and requires no special skill to operate it. The operator is designated as "chock block tender." The lever for this device is located on one side of the double track, and that of the drum runner on the opposite side, and both located within what is called a "drumhouse." The drum itself is located some distance behind the drumhouse, and in front of it a hitching post so-called. When the loaded cars are brought out of the mine into the drumhouse and run down against the chock blocks, the rear car, coupled to the front one, is tied to the hitching post by use of a grass rope, and the end of the wire rope is attached to it also. When the cars are ready to descend, the chock block tender, upon signal from the drum runner, opens the blocks by use of the lever, and the cars are eased off by means of the grass rope in charge of one man, until the slack of the wire rope is taken up; and it is the duty of the chock block tender, immediately after the empty cars come up over the knuckle, to close the blocks behind them. There are thus four persons employed in this operation-drum runner, chock block tender, hitching post man, and the man who attaches the ropes to the cars. They each have other duties to perform about the work besides the special ones referred to, in taking the empty cars back to the mine, and bringing the loaded ones forward to the knuckle. The tipple at the foot of the incline is in charge of a weighmaster whose duty it is to weigh all coal dumped there. Others are employed at the tipple also, not necessary to mention.
On November 9, 1903, the defendant had employed as chock block tender, Leonard Lloyd, a boy 15 years and 4 months of age. He had been then employed about 3 days, but had performed faithfully and successfully the duties of his position, without complaint or cause of complaint so far as the record shows, up until 4 o'clock of that day, when two empty cars on the incline jumped the track just as they were coming up over the knuckle, and, before the chock block lever could be operated, had to be gotten on the track and removed off the knuckle. This required the assistance of all employés at that point, including Lloyd, for some four or five minutes. After they passed the knuckle, all assisted in pushing them on towards the opening of the mine. Lloyd in the exigency forgot to throw the chock blocks back over the track, and about the same time two loaded cars from the mine, brought into the drumhouse by the drum runner, who failed to observe that the chock blocks had not been thrown over the track, escaped over the knuckle and down the incline to the tipple, where they struck the plaintiff's intestate, Edward P. Wilkinson, the weighmaster, and two other employés, resulting in the almost instant killing of each. It was to recover damages for the death of Wilkinson that this action was brought by his administrator.
The declaration, in one count, by way of charging the defendant's duty and breach thereof, avers that it was the duty of said defendant to have a careful and competent person "to operate the knuckle where the cars were let down from the mine entry to the tipple below," but that, not regarding such duty, it employed "a totally incompetent and irresponsible boy of the tender age of fifteen years to operate said knuckle and levers necessary to operate said knuckle in letting down said cars off the hill," knowing that said boy was incompetent to perform said work; it further avers that certain loaded coal cars were permitted, through the incompetency of said boy in operating said knuckle, to run down the incline and kill the plaintiff's intestate. On the trial, there was a verdict and judgment for the plaintiff for $5,500. For alleged errors committed by the trial court, the defendant has brought the case here for review.
First, it is claimed there is a fatal variance between the declaration and the proof. The argument on this point is that, as the evidence disclosed, the term "knuckle" is frequently used as an inclusive term, embracing the drumhouse and all appurtenances at the head of the incline, and was sometimes so employed by the witnesses in their testimony, and that it was in this sense the pleader intended to use it in the declaration. But we do not think the point meritorious. The declaration clearly distinguishes between the operation of the drum and that of the knuckle, and the negligence charged clearly relates to the employment of the boy to operate the knuckle. At the knuckle, according to the testimony, the boy was in fact employed; and we perceive no substantial variance between the allegata and probata in this respect. Another point of alleged variance is that the declaration charges the boy to have been 15 years old, whereas the proof showed he was 15 years and 4 months old. We see no merit in this point. It is customary to speak of one's age as of his last birthday. This is the common meaning of the word. In life insurance contracts, the rule is to refer the age to the nearest birthday; and it would be most unusual in a declaration of this character to charge the age with literal accuracy as to months and days.
The motion of the defendant to exclude the plaintiff's evidence, the questions presented by its instructions 1, 5 7, and 8, all refused, and the errors relied upon, all depend on the sole question, in its various phases, whether the defendant was guilty of negligence in employment of Lloyd as chock block tender. Instruction No. 1 told the jury that the evidence would not support a verdict for the plaintiff; No. 5, that if they found Lloyd "was smart and bright, of strength adequate to the performance of the duties of his employment, was instructed in the performance of those duties, and knew what would be the natural consequences of a failure to perform those duties," his employment was not negligence; No. 7 was practically of the same import, except that it took into account the previous experience of Lloyd in working about mines; No. 8 took into consideration the facts supposed in 5 and 7, and told the jury that if they believed from the...
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