Craft v. Coal Co. , 114 W. Va. 295 ( 1933 )

The trial court, at the conclusion of plaintiff's evidence, sustained a motion to direct a verdict for the defendant. From the judgment entered on that verdict, plaintiff below prosecutes error.

The case is here as though the defendant below had demurred to the evidence. All doubts are to be resolved in favor of plaintiff below. Schwarzbach v. Pro. Union, 25 W. Va. 622;Woodell v. W. Va. Imp. Co., 38 W. Va. 23, 31, 17 S.E. 386.

The court below expressly found that there was doubt as to the negligence of the defendant: "The court is uncertain as to whether negligence on the part of the defendant has been shown for the reason that it is doubtful whether the defendant should have anticipated that a young man of the age and experience of the plaintiff would climb on top of a building in the manner in which the evidence discloses this plaintiff reached the top of said building and then blindly and carelessly walk into live wires." The conclusion of the trial court as to defendant's negligence seems to be sound, because the roof of a building is a place to which it may reasonably be anticipated human beings will go, it being shown in this case that it was a matter of almost common knowledge in the neighborhood that children frequented this roof for play. See 9 R. C. L. 1213, where it is said:

"It has been held however that one who goes upon a roof over which electric wires are stretched cannot be regarded as going into the presence of known danger and assuming the hazards thereof, and as forfeiting his right to recover for injuries suffered from the negligence of the company maintaining such wires in not keeping them properly insulated. It is a matter of common knowledge that persons frequently resort to such a place, and it may be reasonably anticipated that persons will go there."

See also the cases, including particularly, Clements v.Louisiana Electric Light Co., 44 La. Ann. 692, 11 So. 51, 16 L.R.A. 43, 32 Am. St. Rep. 348, and Runyan v. Kanawha Water,etc., Co., 68 W. Va. 609, 71 S.E. 259, 35 L.R.A. (N.S.) 430, cited to sustain the text, and the references to notes in American State Reports, Lawyers Reports Annotated, both old and new series, and Annotated Cases.

The matter of getting the wires beyond danger seems to have been the simple thing of raising them six or eight feet above the ridge of the roof on an insulated prop. But the court below sustained the motion of the defendant upon the ground that plaintiff was guilty of contributory negligence as a matter of law. This finding necessarily admits the negligence of the defendant. There can be no contribution of negligence without pre-existing primary negligence to which it contributes.Charleston v. DeHainaut, 95 W. Va. 202, 120 S.E. 524. So that both by the direct finding of the lower court and by the logical consequence of dealing with the case on the basis of plaintiff's contributory negligence, we know that defendant's negligence was at least a jury question.

Then the only question for this court to decide is: With all of the fair inferences from the testimony decided in his favor, was plaintiff, as a matter of law, guilty of contributory negligence? He may, as a matter of fact, have been guilty of such negligence, so that a verdict for the defendant, if rendered, would not be disturbed, but in order for him to have been so guilty as a matter of law, the proof must be in such state that all reasonable minds would unite on that conclusion.Daniels v. C. O. R. R. Co., 94 W. Va. 56, 59, 117 S.E. 695.

In order to be found guilty of contributory negligence, either as a matter of fact or as a matter of law, plaintiff must have known of the danger or at least must have had reasonable ground to anticipate it. Fowler v. R. R. Co., 18 W. Va. 579;Woodell v. W. Va. Imp. Co., 38 W. Va. 23, 40,17 S.E. 386.

As to whether he, in fact, knew of the unprotected live wires at a point three feet above the ridge of the roof (seven to eight feet above the flat part of the roof, hence well above plaintiff's head there, although his height does not appear in the record), we have his reiterated express denial. At page 56, Record: "Q. 127. You say you didn't know any wires were up there at all? A. No, sir, I didn't know they were even down there." At page 59, Record: "Q. 163. Did you see them when you went up there? A. No, sir, I saw them afterwards. Q. 164. You didn't see them when you were on the roof? A. No, sir, I didn't even down to know they were there." At page 61, Record: "Q. 192. Had you ever been up on that building before? A. No, sir." At page 67, Record: "Q. 285. If you had seen the wires there you would have known they were dangerous and stayed away? A. Yes, sir." On cross-examination, at page 71, Record: "Q. 14. There was nothing to prevent you while standing on your porch at your home looking at these wires from seeing that they crossed over this garage building was there? Nothing to shut off your view? A. Well, I didn't know where they went to. I hadn't never paid no attention." At page 77, Record: "Q. 88. And during all of that time now you tell the jury that notwithstanding the fact that you knew there were wires in that vicinity — A. I knew that they came from the house down that way somewhere. I didn't know where." Against this testimony, we have circumstances developed by questions of the court itself (the court addressed 108 questions to plaintiff) tending to show, but by no means proving, that plaintiff had, and proving that he could have gained, this knowledge. He knew the wires ran by his home in the direction of the building where the injury occurred. (His home was 150 to 200 yards away.) He knew a pole, such as usually is placed to carry wires, stood near the garage where he was playing when hurt; from working in the mines, he knew the danger of high voltage electric current, and that a contact with a human being making a circuit or ground would cause shock. Certainly, on the question of actual knowledge of the presence on the roof of these dangerous wires, these circumstances are at most in conflict with his direct denials of knowledge, making a pure jury question. Explanatory of this conflict, we have testimony tending to show that the pole in question had no wires on it at the time of the injury. Record, p. 107. On the basis of his knowledge andexperience, the trial court put plaintiff unqualifiedly in the class of an adult as to contributory negligence, but it may, nevertheless, be doubted that an exuberant youth reckless enough to play at corncob battle on the roof of a building had adult appreciation of and prudence to avoid, danger. Judgment and discretion are just as much faculties that a person under age must possess to be chargeable with contributory negligence, as are experience and knowledge. Prunty v. Traction Co., 90 W. Va. 194,110 S.E. 570. The capacity of one under age to be guilty of contributory negligence rests upon presumptions of fact, and, hence, is primarily a jury question. Ewing v. LanarkFuel Co., 65 W. Va. 726, 732, 65 S.E. 200. It seems clear to me that with the inferences on these questions viewed most favorably to plaintiff, they were for the jury as a matter of fact, and not for the court as a matter of law, to decide.

Was there legal reason for plaintiff to carry in mind his knowledge of the danger of electricity and its action when he went upon the roof to fight his corncob battle? Must he, as amatter of law, anticipate the dangerous presence of live wires? The negligence of the defendant, which, as we have seen, must be assumed in dealing with the plaintiff's alleged contributory negligence, consisted in having those wires where they had nobusiness to be, or in having them unguarded. Must plaintiff anticipate, in the absence of actual knowledge, that they would be where they had no business to be, or that they would be unguarded? I think not. To the contrary, he had a right to assume that defendant's duty not to have them in a dangerous proximity to a place where people had a right to be, would be performed, or that, if there, they would be guarded. Ritter v.Hicks, 102 W. Va. 541, 545, 135 S.E. 601.

It is said that a warning was shouted at him by a playfellow. That was at the moment of contact. Record, page 112. There is no proof that it came in time to avail, or that plaintiff actually heard the warning at all. It is pointed out that had he looked in the direction of the wires he would have seen them, but no reason to look nor a duty to look is shown unless he must anticipate a failure on the part of the defendant to do its duty, which is not the law. The cases cited to sustain this view of defendant are where there was a duty to look by reason of a known danger or one reasonably to be anticipated.

I conclude that the defendant's negligence as a jury question stands established by this record, by the method of dealing with the case in the court below, and by its consideration in this court. I see no basis in the record for the position that, with all inferences drawn in his favor, all reasonable minds must unite upon the existence of contributory negligence of the plaintiff. The trial court itself showed misgivings along this line that seem to be hardly consistent with that certainty of conclusion which alone justifies taking a case from the jury: "Gentlemen of the jury, you will understand that this is your verdict under the instructions of the court. Some of you maydiffer with the court. You may think that this is a case which you should decide, but the court being of the opinion that if you returned a verdict for the plaintiff, it would be the duty of the court to set aside that verdict, it then becomes the court's duty to direct a verdict for the defendant. If the court be in error in this respect then the responsibility is taken by the court and not you. If the court has erred in instructing you to return a verdict for the defendant, then the Supreme Court can correct any error made and if this case presents a question for a jury, it will be remanded to this court at a later date to be tried in accordance with the directions of the Supreme Court."

On the testimony contained in this record, plaintiff might lose his case before a jury either because he has not shown by a preponderance that the defendant was negligent or because the proof might be construed by the jury as showing plaintiff's own negligence. The trial court has indicated clearly that he considered the first matter a jury question. I am clearly of the opinion that the second was also a jury question.

I would, therefore, reverse the judgment, set aside the verdict and remand the case for a new trial.