Trobie v. Riter-Conley Co.
Trobie v. Riter-Conley Co.
Opinion of the Court
This writ of error brings up for review a judgment of the circuit court of Ohio county in favor of the plaintiff for damages for a personal injury received by him while in defendant’s employ.
The defendant, a contracting company, was engaged in making repairs to a furnace of the Wheeling Steel & Iron Company, and as part of the work it was necessary to remove from the furnace certain refuse matter which had accumulated at the bottom thereof. It appears that this matter had formed a solid mass, and before it could be removed it had to be broken up with charges of dynamite, and then the pieces raised out of the furnace and conveyed away. This matter is called in the record a salamander. At the time the accident happened to the plaintiff the salamander had been broken up and considerable thereof had been removed, and the defendant was engaged in removing the remainder. In doing this work blocks were fastened up in the furnace and the pieces of the salamander being removed were raised by this means to the level of the ground surrounding the furnace, and then another rope, called an outhaul, was attached to the cable by which the salamander was suspended, and by means of blocks used in connection with the outhaul
The plaintiff brought this suit charging in his declaration that the defendant was negligent: First, in that it did not use ordinary care, diligence and skill in doing the work; Second, in that it did not provide reasonably safe, proper and fit machinery and appliances; Third, in that it did not reasonably and seasonably inspect the machinery, appliances and instrumentalities; Fourth, because it did not maintain the machinery and appliances in a fit and suitable condition for doing the work; Fifth, because it subjected the machinery and appliances to a greater strain than they were suitable to withstand and resist; Sixth, because it selected incompetent servants and employes for carrying on this work. Upon a trial a general verdict was rendered in favor of the plaintiff for the sum of five thousand dollars, and the jury answered five certain interrogatories submitted to them, said interrogatories and the answers thereto being as follows:
“1. Was the injury proximately caused by the breaking of the hook? Answer. Yes. 2. Did the foreman Drum-mond have reason tp expect the breaking of the hook? Answer: No. 3. At the time of the accident was the plaintiff in as safe a position as the foreman Drummond ? Answer:*126 No. 4. Did the foreman take the same care to provide for the safety of the plaintiff as for his own safety? Answer: Yes. 5. Were the plaintiff’s injuries proximately caused by reason of any incompetency on the part of the man at the nigger-head handling the outhauling rope? Answer: No.”
The defendant moved the court to render judgment in its favor upon the special verdict consisting of the interrogatories and the answers thereto, upon the ground that such answers were entirely inconsistent with the general verdict, and decided the issues involved in its favor; and, if this motion should be overruled, then that the verdict of the jury be set aside upon the ground that the court had misdirected the jury on motion of the .plaintiff. The circuit court successively overruled each of these motions and rendered judgment in favor of the plaintiff on the general verdict.
Upon this writ of error the defendant assigned as error the action of the court in refusing to render judgment in its favor upon the special verdict, and also the refusal of the court to set aside the verdict upon the ground of misdirection of the jury. Upon the hearing it has withdrawn the latter assignment of error, and desires to stand solely upon the contention that it is entitled to a judgment in its favor upon the special findings. It contends that the answers to the interrogatories decide every issue raised in the case in its favor, and are in irreconciliable conflict with the general verdict. If this contention is correct, of course it is entitled to a judgment upon the special verdict, notwithstanding the general verdict.
The defendant insists that in considering the question whether or not the answers to the interrogatories are in conflict with the general verdict, nothing but the pleadings, the special findings, and the general verdict may be looked to, and cites the ease of Penninsular Land Co. v. Franklin Ins. Co., 35 W. Va. 666, to support this contention. The judge delivering the opinion in that case did make use of the language quoted by counsel, but it may not be susceptible of as literal interpretation as counsel would give it. However, suppose we consider the answers to the interrogatories in conection
The first interrogatory is, “Was the injury proximately caused by the breaking of the hook?” to which the jury answered, “Yes.” Of course, it is perfectly patent that this question and answer determined nothing of importance in this case. It is clear that when the jury stated that the breaking of the hook proximately caused the injury it meant no more than that the plaintiff’s injury was occasioned by the hook breaking, which permitted the block to fly and hit him in the face. It did not and could not mean that the hook was the efficient cause of the injury. This language is not used in the question in the sense in which it is ordinarily used in the law of negligence. Every count in the declaration alleges that the plaintiff’s injury was produced from a blow received by him from the block which was released by the breaking of the hook. The pertinent inqury was, what caused the hook to break, and no special interrogatory propounds this question to the jury.
But the defendant urges that the answer to the second interrogatory is conclusive of every issue in its favor when read in connection with the answer to the first of such interrogatories. The second interrogatory is, “Did the foreman Drummond have reason to expect the breaking of the hook ? ’ ’ and the answer thereto is, “No.” Looking to the pleadings alone we cannot see just what relaveney the expectations of the foreman Drummond might have. The pleadings do not refer to him, nor does it appear therefrom how his conduct and expectations might in any way control the case in favor of the defendant. It may be assumed from the interrogatory that he was a foreman of the defendant on the work, but whether in the full charge of it or not does not appear, except from the evidence, which counsel say we cannot look to. It must be borne in mind that the declaration charges negligence in several different particulars. It might be, so
Interrogatory No. 3 is, “At the time of the accident was the plaintiff in as safe a position as the foreman Drum-mond?” to which the jury answered, “No.” The fourth interrogatory is, “Did the foreman take the same care to provide for the safety of the plaintiff as for his own safety ? ’ ’ to which the jury gave an affirmative answer. The answers to these interrogatories conclude nothing. They are simply an attempt to substitute the care exercised by Drummond, the defendant’s foreman, in doing this work for the care required by law. The test of due care is not what any particular man may think is due care, but what a reasonably prudent man believes to be due care under the particular circumstances, and these interrogatories assume, if they are to have any force in this case at all, that Drummond is the reasonably prudent man by whose conduct due care must be measured in the doing of the work. The very gist of the action is that the defendant by its representative Drummond was negligent, and for the court to assume that whatever Dr.ummond did was done in the exercise of due care .would be to deny the plaintiff’s right to recover. This measure of due or ordinary care which is required to be exercised by the master must be determined in each particular case by the surrounding facts, and is such care as an ordinarily prudent man would exercise in the doing of the work under the conditions shown to have existed. Defendant by these inter
The fifth and last interrogatory is, “Were the plaintiff’s injuries proximately caused by reason of any incompetency on the part of the man at the nigger-head handling the outhaul-ing ropel” to which the jury gave a negative answer. Looking to the pleadings alone, this interrogatory and this answer conclude no issue in the case. The pleadings show that the defendant employed a number of servants in doing this work, and that it was negligent in the selection of incompetent servants for the purpose, by reason of which negligence the hook broke and produced the injury complained of. This interrogatory limits the finding of the jury to one particular servant. So far as the pleadings are concerned, the jury may have found that all of the other servants employed by the defendant were incompetent, and that the defendant was negligent in their employment. The issue made by the evidence, however, is, so far as the employment of incompetent servants is concerned, confined to the particular man referred to in the interrogatory, so that when we interpret this interrogatory in the light of the issue made by the evidence, it does conclude the question it was intended to settle, that is, that the defendant was not negligent in the employment of its
Affirmed.
Reference
- Full Case Name
- Andrew Trobie v. Riter-Conley Company
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