Blair v. Norfolk & Western Railway Co.

Opinion of the Court by William Rogers Clay, Commissioner Reversing. In this action for damages for personal injuries by plaintiff, William Blair, against the defendant, Norfolk & Western Railway Company, there was a directed verdict in favor of defendant. Judgment was entered accordingly, and plaintiff appeals. The facts are these: Plaintiff entered defendánt’s employ in the month of July, 1909. Prom that time until the date of the accident, which occurred on March 12, 1910, he was engaged in cutting rivets from steel cars that [834] had been wrecked on defendant’s line. In doing this work one employe would hold the cutter while another employe would strike the cutter with a hammer. Up until about eig’hteen days before the accident it was customary for a third party to be present and hold a broom over the top of the rivet head so as to prevent those present from being injured by fragments therefrom. According to the evidence for plaintiff defendant’s master mechanic, on February 22, 1910, ordered plaintiff and those working with him to discontinue the use of the broom as a protection against flying rivets, and assured them that there was no danger from the rivets. The same witnesses also say that their foreman further informed them that thereafter the broom would not be used. Pursuant to these orders, they discontinued the use of the broom. The master mechanic and foreman deny that any such orders were given. The former claims that upon one occasion he saw plaintiff and other employes pushing the broom in each other’s face, and told them if they could not do any better than that they had better go home. After the alleged order to discontinue the use of the broom was given plaintiff continued to work without a broom until the date of the accident. On that occasion he was holding the cutter. A piece from the rivet on which he was working flew off and struck him in the eye. He knew that rivets were liable to fly in any direction. In his original petition plaintiff based his right of recovery on the failure of the defendant to furnish him reasonably safe tools and appliances, and a reasonably safe place to work, and its additional failure to furnish another employe to hold the shield over the rivet head. In his amended petition plaintiff pleaded that the defendant ordered him and the other employes to discontinue the use of the broom, and assured them that this method of work was safe and free from danger, and that, relying on this assurance, he continued to work without the broom. The defendant introduced several defenses, and on the day the case was set for trial, offered an amended answer pleading, in substance, that the injury occurred in the State of West Virginia, and that under the law of that State plaintiff assumed the risk. The trial court declined to permit the amended answer to be filed. The court, however, did permit the defendant to offer in evidence a decision of the Supreme Court of Ap [835] peals of West Virginia, bearing on tbe question of assumed risk, and at tbe conclusion of tbe evidence peremptorily instructed tbe jury to find for tbe defendant. As tbe injury occurred in West Virginia, tbe rights and liabilities of tbe parties depend on tbe law of that State. P. C. C. & St. L. Ry. Co. v. Austin, 141 Ky., 722; Collins v. Norfolk & Western Ry. Co., 152 Ky., 755. Tbe law of another State is a fact to be pleaded and proved. In tbe absence of pleading and proof it will be presumed that tbe common law is in force in the other State, and that it is tbe same as tbe common law prevailing in this jurisdiction. Where neither party, therefore, pleads and proves tbe law of tbe State where tbe injury occurred, tbe practical effect is to invoke tbe common law of this State. Thacker, by &c., v. Norfolk & Western Ry. Co., 162 Ky., 337; Chesapeake & N. R. Co. v. Venable, 111 Ky., 41; L. & N. R. R. Co. v. Smith, 135 Ky., 462; Yellow Poplar Lumber Co. v. Ford, 141 Ky., 25. In this case plaintiff did not rely on tbe law of West Virginia. Defendant, however, offered an amended answer pleading tbe law of assumed risk as applied in that State. For some reason tbe trial court declined to permit this amended answer to be filed. Notwithstanding this fact, be permitted defendant to prove, over tbe objection of plaintiff, what tbe West Virginia law on assumed risk was. After rejecting tbe amended answer, it was error to bear evidence on tbe question; for, in tbe absence of a pleading, plaintiff was not apprised of tbe fact that tbe West Virginia law would be relied on, and was, therefore, given no opportunity to introduce evidence on tbe question. As tbe evidence was beard by tbe court, we will not assume that be disregarded tbe evidence and decided tbe case under tbe common law of this State, but rather that be was guided in bis conclusions by the evidence which be beard. As this evidence was clearly incompetent, and as tbe case must be reversed for a new trial under tbe West Virginia law, we deem it unnecessary to determine whether or not a peremptory under our law would have been proper. On tbe return of tbe case tbe trial court will permit the defendant to plead tbe law of assumed risk as applied in tbe State of West Virginia, and will give each of the parties an opportunity to offer evidence on that question. Judgment reversed and cause remanded for new trial consistent with this opinion.