Wills v. MontfaiR Gas Coal Co..

• Citation: 104 W.Va. 12
• Decision Date: 31 May 1927
• Docket Number: (No. 5825)
• Court: Supreme Court of West Virginia
• Parties: John Wills, Administrator, etc. v. MontfaiR Gas CoalCompany et al., Defendants Below.Montfair Gas Coal Company, Plaintiff in Error.

104 W.Va. 12

John Wills, Administrator, etc.

v.MontfaiR Gas Coal

Company et al., Defendants Below.

Montfair Gas Coal Company, Plaintiff in Error.

(No. 5825)

Supreme Court of Appeals of West Virginia.

Submitted May 3, 1927.

Decided May 31, ' 1927.

1. Master and Servant Verdict Against Master Without Mentioning Servant, Joint Tort Feasor Must Stand, Unless Damages Were Caused Solely by Servant's Act.

Where a master and servant are sued for damages occasioned by their negligence as joint tort feasors, and the verdict is against the master and silent as to the servant, the verdict will not be set aside under the doctrine of respondeat superior, unless it be shown that the damages were occasioned solely by the act of the servant, and the master could in no way be liable except for that act. (p. 16.)

(Master and Servant, 39 C. J. § 1602.)

2. Appeal and Error Erroneous Instruction Which Findings of Fact Show Harmless Does Not Require Setting Verdict Aside; Instructions on Failure to Furnish Reasonably Safe Place to Work or Reasonably Safe Appliances of Which There Was no Evidence Held Erroneous, But Harmless, Where Answers to Special Interrogatories Compelled Verdict Rendered.

A verdict will not be set aside because of an erroneous instruction, where the jury, in answer to special interrogatories, has made findings of fact which show the instruction, if considered, was harmless. (p. 22.)

(Appeal and Error, 4 C. J. §§ 3013, 3028.)

3. Death Father's Contributory Negligence in Consenting to Minor Son's Employment, Barring Recovery for Death, Held for Jury.

Where the father consents to the employment of his minor son as "trapper" in a coal mine, and the employer puts the son to work as "snapper" or brakeman therein (a more dangerous employment), against the express injunction of the father and without his knowledge or consent, as claimed by the father, but on the other hand, claimed to have been done with the express consent of the father; and the son receives fatal injuries while serving as "snapper," from natural, probable and anticipated causes incident to such employment, the question of contributory negligence on the part of the father in giving his consent to the employment and barring him from recovery as sole distributee of the minor son's estate, is for jury determination. (p. 20.)

(Death, 17 C. J. § 180; Parent and, Child, 29 Cyc. p. 1649.)

4. Appeal and Error Trial Ruling on Order of Evidence and Time of Introduction is Rarely Ground for Reversal; In Action for Death in Coal Mine, Admitting in Rebuttal Testimony for Plaintiff That Deceased Appeared Under Sixteen Years Old Held Not Error.

The order of evidence and the time of its introduction, and whether a party shall introduce more evidence after that of the adverse party, are matters within the discretion of the trial court, and its exercise will rarely be ground of reversal. (p. 25.)

(Appeal and Error, 4 C. J. §§ 2786, 2787; Trial, 38 Cyc. pp. 1353, 1357.)

(Note: Parenthetical references by Editors, C. J. Cyc. Mot part of syllabi.)

Error to Circuit Court, Marion County.

Action by John Wills, administrator of Tony Wills, deceased, against the Montfair Gas Coal Company and another. Judgment for plaintiff against the named defendant, and it brings error.

Affirmed.

Tusca Morris and Houston G. Young, for plaintiff in error. Shaw & Shaw and Poffenbarger, Blue & Dayton, for defendant in error.

Lively, Judge:

John Wills, Administrator of Tony Wills, deceased, sued defendant Coal Company and Thomas Jarrett for the death of Tony, alleged to have been caused by their joint negligence and carelessness; and upon a verdict of $8,000.00 against the Company, judgment was entered from which the Coal Company prosecutes error.

Tony Wills was employed in defendant Coal Company's mine, and at the time of his death, April 10, 1920, was working as a brakeman or "snapper" on a gathering motor train in a part of the mine designated as the '' Third Right''. Prior to that day he was a "trapper", but at previous times had worked as "snapper". His father, John Wills, was a tracklayer in the mine, and it appears that prior to the acquisition of the mine by defendant November 1, 1918, the father and son had worked in the mine, and that the latter was at the time of purchase working as a "snapper". In the first month of defendant's ownership of the mine, November, 1918, Tony's hand was injured while he was working as a snapper, for which injury he received compensation from the Workmen's Compensation Fund to which defendant was always a subscriber in good standing. When defendant purchased the mine, the father, according to defendant's testimony, made affidavit that the son was over 16 years of age. Later a mine inspector required and was given a second affidavit signed by the father to the effect that Tony was over 16 years of age. The father denied ever making these alleged affidavits. They were not produced in evidence.

From November, 1918, up to the time of his fatal injury on April 10, 1920, Tony was employed as a trapper. On the day of the fatal injury, there was a vacancy in the position of "snapper" on the gathering motor in the "Third Right", and Tony was directed to take the position, and did so. There is a sharp controversy over this change of employment from "trapper" to "snapper". Defendant Jarrett, the mine foreman, says that early that morning he met John Wills and Tony as they were going to work, and informed them of the vacancy and asked them if Tony wanted that job having theretofore been solicited by John to give his son more remunerative employment; and Tony, with the assent of the father, took the position. John Wills, the father, denied this, and says that he never had such a conversation, and that he had consented only to Tony's employment as a trapper, and had told Jarrett and his assistant, Charley Garrison, that he did not want the boy to work other than as a trapper. Other witnesses corroborate John Wills in this.

When Tony worked as snapper in November, 1918, the mine foreman had instructed him about the dangers of the position, and especially warned him not to ride on the bumpers of the mine ears while they were in motion. Tony's father had warned him not to ride the bumpers; and on the day he was killed he had been twice warned, once by Frank Banks, a fellow employee, who caused the motorman to stop the cars so that Tony might get off the bumper where he was riding and get inside the car or in the pit of the motor; but Tony did not leave his position on the bumper. And on the fatal trip, the motorman told him not to ride the bumper. On this last trip the motor was shoving one empty car, on the front bumper of which Tony was riding in a squatting position with his left arm over the front top of the car, when the car was derailed, causing the boy's head to be caught and crushed between the top of the car and a projecting rib of coal, resulting in almost instant death.

Three special interrogatories were propounded to the jury on motion of defendant, which were in effect as follows: 1. Was Tony 16 years old at the time of the accident? 2. In the event that the jury should find that he was not 16 years of age, then was his employment as a snapper acquiesced in or consented to either expressly or impliedly by the father, and was the employment the natural, probable and anticipated cause of the injury? 3. And should the answer of the jury be no to the first two interrogatories, then was Tony at the time of his death, possessed of such wisdom, experience and sagacity as would take him out of the class of youths under 16 years of age and make him for such reason capable of contributory negligence? To all of these interrogatories the jury answered "No". To the declaration both defendants had put in the general plea of not guilty, and had filed two special pleas, one to the effect that defendant Company had complied with the Workmen's Compensation Act and was not liable because Tony was over 16 years of age; and the other was that if Tony was under 16 years, that John Wills had consented to his employment as snapper, was his sole distributee, and was thus barred from recovery.

There are three counts in the declaration. The first count charges that defendants employed Tony Wills, who was under the age of 16 years, to work in a coal mine in which employment he was killed in the operation of the mine cars, and the unlawful employment was the cause of his death. The second count says that John Wills, the father and plaintiff, consented to the employment of Tony in the mine to work therein as a trapper, and that afterwards defendants against the express direction of the father and against his consent, changed the employment from trapper to snapper (a highly dangerous position); and not regarding their duty, employed an incompetent and unskilled motorman to haul the cars on which Tony worked as snapper or brakeman, which motorman operated the motor negligently and carelessly, causing the cars to be derailed, catching Tony between them and the face of the coal, causing his death. The third count charges the unlawful employment of the minor son as a snapper against the express wishes and refusal of the father to consent thereto; that it was the duty of defendants to provide a safe place to work, to employ a competent motorman, make and enforce reasonable rules for the operation of the motor and cars, which duties were breached by defendants in that they did not employ a. competent motorman; did not adopt reasonable rules; and did not furnish a safe place to work, but on the contrary permitted the ties, rails, tracks and roadbed to become and remain out of repair and dangerous; employed an incompetent and unskilled youth of 18 years of age as motorman, who negligently and carelessly operated the motor and cars over the defective tracks at excessive speed, which caused the cars to leave the track, thus causing the boy's death.

As above stated, the jury found the deceased to be...