Gallik v. Wheeling Steel & Iron Co.

MillbR, Judge : In an action for personal injuries the judgment complained of set aside the verdict in favor of plaintiff for $11,458.33, and awarded defendant a new trial. The first point of error is that the court below erroneously sustained defendant’s demurrer to the third count of the declaration. This count is predicated on the duty imposed by section 59, chapter 15IT, Code 1913, on the owner or "master of ‘ ‘ all manufacturing, mechanical and other establishments, in this State, where the machinery, belting, shafting, gearing, drums and elevators, are so arranged and placed as to be dangerous to persons employed therein, while engaged in their ordinary duties” to have the same “safely and — 535 — securely guarded when possible, and if not possible” that "notices of the danger * * * * be conspicuously posted in such establishments. ’ ’ This count of the declaration, while perhaps otherwise sufficient, is bad on several grounds: First, it fails to allege that plaintiff’s duties as an employee to repair and replace belts required him to go up on the particular machine where he is alleged to have sustained his injuries while said machine was in motion; or, second, that it was necessary or possible to safely and securely guard the shaft, pulleys, cogwheels and belts, or metal pin projecting therefrom; or, third, that no notices of the dangers thereof were posted as required by the statute. It is alleged that plaintiff’s duties required him to go up on this machine, but not while in motion, and as is alleged, this was a high machine, and the parts referred to were not so located as to be dangerous to plaintiff or other employees, unless required to go up on it while in motion. "We think the declaration should have alleged the omitted facts in relation thereto to be' good under the statute. The alleged duties of the master in relation to such plant and machinery do not obtain unless the conditions imposing them are present and calling for compliance with the requirements of the statute, and to bring a case within the purview of the statute the declaration should affirm those conditions. Our decisions do hold that the facts being alleged from which the statutory duties arise, the court will take judicial notice of the statute, a breach of those duties being averred. Squilache v. Coal & Coke Co., 64 W. Va. 337, 339, and authorities cited; 3 Bailey on Per. Inj., (2nd ed.) section 843. The second point is that it was error to sustain defendant’s demurrer to the fourth count of the declaration. This count relates to the alleged negligence of defendant to promulgate rules to govern its employees in operating its machinery, resulting in the injuries sustained by plaintiff. The opinion of the court below was that this count was bad for failure to show how the failure to adopt such rules contributed to or caused the accident, or how the adoption of such rules could have prevented the sudden starting of the machines, and that in the absence of any such showing this count is deficient. Besides averring negligence in failure to adopt and promulgate — 536 — rules generally, resulting in injury to plaintiff, this count avers defendant’s negligence especially in failing to “promulgate rules for the government of its said employees in the matter of stopping and starting its said machines and machinery when and while belts were being placed on or removed from its said belt-wheels, .and to provide and promulgate proper rules for its said employees, and especially for those of its said servants employed in the running of said machines and machinery, and forbidding and prohibiting the sudden starting of said machines and machinery in motion while belts were being placed on or removed from said belt-wheels by its servants.” And it is distinctly alleged that plaintiff sustained his injuries by such alleged negligence of defendant. Our decisions have adopted the liberal rule on this subject. If the alleged act of negligence be stated in general terms, and without stating the particular facts going to prove negligence, but stating the main or primary act of omission or commission doing the damage, this will be regarded sufficient pleading. Snyder v. Wheeling. Electrical Co., 43 W. Va. 661; Veith v. Hope Salt Co., 51 W. Va. 96, 41 S. E. 187; 10 Ency. Dig. Va. & W. Va. Reports, 397, et seq. These authorities say that “a declaration in an action for negligent injuries which states the cause of action so .that it can be understood by the party who is to answer it, by -the jury who are to ascertain the truth of the allegation and by the court who is to give judgment, and which distinctly sets forth when, where, in what manner and under what circumstances the plaintiff was injured by the defendant’s defaults, negligence and improper conduct is sufficient.” In 6 Thompson on Negligence, section 7536, it is laid down on the authority of the Oregon case of Wild v. Oregon &c. R. Co., 21 Ore. 159, contrary to Voss v. Delaware &c. R. Co., 62 N. J. L. 59, cited, that the general charge of negligence is sufficient to admit evidence in respect to failure to promulgate rules, and that a defendant in support of his plea of contributory negligence may show that he promulgated rules violated by plaintiff, or other servant, resulting in the injury complained of, and this without pleading the specific fact of such rules. In Texas & P. Ry. Co. v. Cumpston, (Tex.) 40 S. W. 546, it is distinctly decided, fourth point of the syllabus, that: “In — 537 — an action for negligence of an employer in failing to provide rules whereby an employe was killed, plaintiff need not allege or prove exactly what rules-should have been made.” But in the leading case of Voss v. Delaware &c. R. Co., supra, it is decided, point two of the syllabus, that: “The general averment in a count in a declaration of the negligence of the railroad company to make and enforce reasonable and proper rules and regulations for the guidance of its employes in its business, or in the operation of its railroad yards, is not a sufficient averment of an element of negligence upon which an action for personal injuries by the servant against the company can be based.” We emphasize the fact stated in the opinion as well as in the syllabus of the case last cited that “a general averment” in respect to the promulgation of rules will not do. But which of these is the correct rule, and whether or not under a general averment of negligence the fact of negligence in failing to adopt and promulgate rules may be given in evidence, or such negligence must be specially pleaded, we need not for the purposes of this case decide, for in our opinion this fourth count sufficiently answers all the requirements of either rule. It avers generally negligence of defendant to adopt and promulgate rules, and distinctly specifies negligence to adopt and promulgate a rule respecting the stopping and starting of defendant’s machines and machinery. As all the other counts in the declaration seem to be predicated upon the departmental or superior servantey rule, repudiated in our case of Jackson v. Norfolk & W. R. Co., 43 W. Va. 380, and there is no count of general negligence under which the rule of some decisions would admit evidence of negligence in failing to adopt and promulgate rules, we are of opinion to hold that the court erred to the prejudice of the plaintiff in sustaining defendant’s demurrer to said fourth count, and that as another trial is to be had in accordance with the judgment complained of, we think the judgment below should be corrected, and the demurrer to said fourth count overruled, and that on the new trial awarded plaintiff should be permitted to sustain said count by evidence if he can do so. — 538 — Next, and thirdly, it is complained that the court below erroneously set aside the verdict of the jury and awarded defendant a new trial. As already noted the counts in the declaration upon which- the trial was had were predicated solely upon the departmental or superior servantcy theory, once the law of this state, but overruled in Jackson v. Norfolk (& W. B. Co., supra, and we think this case as presented is controlled absolutely by the principles of the Jackson Case, which has been many times re-affirmed in subsequent decisions, notably in Miller v. Berkeley Limestone Co., 70 W. Va. 643, and Ferguson v. Glady Fork Lumber Co,, 72 W. Va. 278, 78 S. E. 689. Urgent appeals are made by counsel in the case at bar to overrule these cases, but we think the principles enunciated therein are well founded in reason and authority and should be adhered to. The only evidence adduced in support of the several counts on which the case was tried, relied on to show negligence, was that, while plaintiff was in the discharge of his duties in removing, repairing and replacing the belt or belts on a particular machine, and where he was required to go while the machinery was not in. motion, the machinery was suddenly and without warning started by the direction or order of the superintendent or foreman on night duty, at the time, whereby he was caught in the cogwheels and other parts of the machinery and sustained the injuries complained of. It is not alleged, and it is not shown in evidence, that plaintiff was not aware of the dangerous place on the machine where he was required to be in the discharge of his duties. He does not allege or rely on failure to instruct or warn him of the dangers of his position, as were the facts in Cave v. Blair Limestone Co., 74 W. Va. 752, 82 S. E. 1095, distinguished therein from Miller v. Limestone Co. and Ferguson v. Glady Fork Lumber Co., supra. As was said in Jackson v. Norfolk & W. R. Co., supra, and subsequent eases, the question of the liability of a master for the negligence of a servant does not depend upon the relative rank in which one servant stands in relation to an injured servant, but upon the character of the negligent act which causes the injury. If that negligence pertains to some non-assignable duty of the master entrusted to one of his servants, whatever be his rank, the master is — 539 — liable; but if it pertains to a co-servant in the operation of the plant or factory of the master, and not falling within his non-assignable duties, the master is not liable. Such is the established law of. our decisions. The sudden starting of the machinery as alleged did not pertain to any of these nonassignable duties of the master, but was a mere act of operation which the master could delegate without liability for negligence of a competent co-servant. And for the foregoing reasons we are further of opinion that as the record then stood there was no error in the judgment below vacating the verdict and awarding defendant a new trial; nor in the refusal of the court to enter judgment upon the verdict for plaintiff. But the court having erred in sustaining defendant’s demurrer to the fourth count, when the case goes back the court below will enter an order overruling the demurrer to said fourth count, so that the plaintiff.may have leave to be hoard on that count also on proper pleadings and issues joined thereon. Affirmed.