Clinchfield Coal Co. v. Wheeler

Harrison, J., delivered the opinion of the court. There is no error to the prejudice of the defendant in error in the proceedings by which this writ of error has been matured for hearing, nor is the bond taken open to the objections [272] urged against it. The motion to dismiss is, therefore, overruled. This is the second appearance of this case upon our docket. Upon the former hearing, the judgment of the circuit court was reversed, the verdict of the jury set aside and the case remanded for a new trial, if the plaintiff should be so advised; the court expressing the opinion that under the facts established by the record no verdict could be rightfully found for the plaintiff, under any instructions. Clinchfield Coal Co. v. Wheeler, 108 Va. 448, 62 S. E. 269. The salient facts of the case are fully stated in the former opinion and need not be repeated here. On the part of the plaintiff the only additional evidence presented by the present record consists of innumerable figures and calculations relating to the mechanical efficiency of the motor, and the opinions of a number of witnesses, that it was not reasonably safe to operate a motor on a ten per cent, grade. In the Anew we take of the case it is not necessary to recite or comment in detail upon this new evidence. Taken as a Avhole it has little or no bearing upon the crucial question upon Avhich this case must turn if rightly decided. Much of it is incompetent, being the mere opinions of Avitnesses who are shown to be without sufficient knowledge or experience to express an opinion on the subject as to which they undertake to speak, and most if not all of it is misleading and calculated to divert the attention of the jury from the real issue to be determined by them. The record shows that all grades and machinery used in coal mining operations are more or less dangerous, and that the degree of safety secured in doing such Avork is measured largely by the care and skill exercised by the operator in performing the duties undertaken by him. In the case at bar it is as true uoav as it was on the former hearing that eA’ery fact Avhich it is claimed contributed to the [273] accident was as fully known to the deceased as it was to the defendant. He was a man of intelligence and considerable experience in such work, and he knew that he was undertaking to operate a traction motor on a ten per cent, grade. The uncontradicted evidence shows that he was fully instructed in this particular operation by a highly competent and experienced expert, under whose immediate surpervision he ran the motor time and again up and down the road; that under this instructor he stopped the motor and started it, applied and released the brakes, and tested its operation generally; and that when his attention was especially called to the grade, he said he had not run on a ten per cent, grade, but had run on one nearly as heavy. He was cautioned to make repeated examinations of the motor, and to report anything that might be wrong. A servant, when he enters the service of the master, assumes all the ordinary risks of such service, and also as a general rule assumes all risks from causes which are known to him, or should be readily discernible by a person of his age or capacity, in the exercise of ordinary care. When the employee is not placed by his employer in a position of undisclosed danger, but is a mature man, doing the ordinary work which he has engaged to do and whose risks are obvious to anyone, he assumes the risk of the employment, and no negligence can be imputed to the employer for an accident to him therefrom. Clinchfield Coal Co. v. Wheeler, supra, and authorities there cited. It is clear from the record before us that whatever danger majr have attended the use of the traction motor and the operation generally in which the deceased was engaged was a risk assumed by him with full knowledge of all the facts. The refusal of the circuit court to give the following instruction asked for by the defendant is assigned as error: “If the jury believe from the evidence that Jack Wheeler knew the railroad track, its grades, curves, and its length and con [274] dition; that he represented to the defendant or its representative, that he understood and could run the motor on that track; that he was a man of sufficient intelligence to know that the steeper the grade the faster a motor and train would run down it, and the harder it would be to hold them, and that he knew what load he was attempting to haul down the grade, he assumed the risk, and the jury must find for the defendant.” This instruction announced the well settled doctrine of assumed risk, it was. applicable to the case, and should have been given. The evidence tended strongly to establish every fact stated in the instruction, and if those facts were proven to the satisfaction of the jury the conclusion of the instruction, that the deceased assumed the risk and the jury should find for the defendant, Avas inevitable. The judgment must be reA’ersed, the Aerdict set aside, and the case remanded for a new trial. Reversed.