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IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
_____________
No. 24003
_____________
MICHAEL L. HARMON,
Appellant
v.
ELKAY MINING COMPANY, A WEST VIRGINIA
CORPORATION;
COAL CARRIERS, INC., A WEST VIRGINIA CORPORATION;
CLM TRUCKING, INC., A WEST VIRGINIA CORPORATION; AND
CIRCLE TRANSPORT, INC., A WEST VIRGINIA CORPORATION,
Appellees
____________________________________________________________________
Appeal from the Circuit Court of Logan County
Honorable Roger L. Perry, Judge
Civil Action No. 94-C-74-P
REVERSED AND REMANDED
____________________________________________________________________
Submitted: October 7, 1997
Filed: *
Marvin W. Masters, Esq.
Paula L. Wilson,
Esq.
Robert A. Taylor, Esq.
Masters & Taylor, L.C.
Charleston, West Virginia
Attorneys for the Appellant
John R. Fowler, Esq.
John A. Singleton, Esq.
Margaret M. Singleton, Esq.
Huddleson, Bowling, Beatty, Porter
and Copen
Charleston, West Virginia
Attorneys for the Appellee,
Elkay Mining Company
Johnnie E. Brown, Esq.
Marianna Bush McHugh, Esq.
Shaffer & Shaffer
Charleston, West Virginia
Attorneys for Appellees,
Coal Carriers, Inc., CLM Trucking
Inc., and Circle Transport, Inc.
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MCHUGH deeming himself disqualified, did not participate
in the decision of this case.
JUSTICE MAYNARD dissents and reserves the right to file a
dissenting Opinion.
SYLLABUS BY THE COURT
1. "A
circuit court's entry of summary judgment is reviewed de
novo." Syllabus Point 1, Painter v. Peavy, 192
W.Va. 189, 451 S.E.2d 755 (1994).
2. "A
motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and
inquiry concerning the facts is not desirable to clarify the
application of the law." Syllabus Point 3, Aetna Casualty
& Surety Company v. Federal Insurance Company of New York,
148 W.Va. 160, 133 S.E.2d 770
(1963).
3. "Upon
a motion for directed verdict, all reasonable doubts and
inferences should be resolved in favor of the party against whom
the verdict is asked to be directed." Syllabus Point 5, Wager
v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973).
4. "'Questions
of negligence, due care, proximate cause and concurrent
negligence present issues of fact for jury determination when the
evidence pertaining to such issues is conflicting or where the
facts, even though undisputed, are such that reasonable men may
draw different conclusions from them.' Syl. pt. 1, Ratlief v.
Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981), quoting,
syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135
S.E.2d 236 (1964)." Syllabus Point 6, McAllister v.
Weirton Hospital Company, 173 W.Va. 75, 312 S.E.2d 738
(1983).
Per Curiam:See footnote 1
1
This is an
appeal by Michael L. Harmon from various summary judgment and
directed verdict orders entered by the Circuit Court of Logan
County in an action instituted by the appellant for injuries
sustained in the course of employment. The circuit court granted
summary judgment to two of the defendants, Coal Carriers, Inc.,
and Circle Transport, Inc., and granted two other defendants,
Elkay Mining Company, and CLM Trucking, Inc. directed verdicts.See footnote 2 2 On
appeal, the appellant claims that the trial court erred in
granting the summary judgments and in directing the verdicts. He
also claims that the circuit court committed various procedural
errors. After reviewing the issues presented and the documents
filed, this Court agrees. The judgment of the Circuit Court of
Logan County is, therefore, reversed, and this case is remanded
for further development.
On March 23,
1992, the appellant, Michael Harmon, received severe injuries
when he jumped from a runaway truck in the course of his
employment. There is some dispute as to whether his employer at
the time was Coal Carriers, Inc., or Circle Transport, Inc., or
whether the two were operating in tandem as the part of a joint
venture. The runaway truck, which the appellant was driving, was
owned by CLM Trucking, Inc., and was leased to Coal Carriers,
Inc. The accident occurred on a steep road located on property
controlled and operated by Elkay Mining Company.
The appellant
believed that a number of factors potentially contributed to, or
caused, the accident. He believed that Coal Carriers, Inc., his
nominal employer, had not properly inspected or maintained the
truck and that it had not properly trained him in the operation
of the truck. He believed that CLM Trucking, Inc., the owner of
the truck, had not disclosed its actual mileage, and by
inference, the wear on its brakes, at the time of leasing it to
Coal Carriers, Inc. He also believed that CLM Trucking, Inc. had
not ascertained the conditions under which the truck would be
operating and as a consequence had not provided a proper vehicle
to Coal Carriers, Inc. Lastly, he believed that Elkay Mining
Company had not properly constructed and maintained the roadway
over which he was traveling at the time of the accident and that
it had allowed him to overload the truck prior to the accident.
A circumstance
potentially affecting the appellant's right to bring this civil
action against Coal Carriers, Inc., and Circle Transport, Inc.,
was the fact that the appellant was injured in the course of and
as a result of his employment and that his injury was thus
covered by West Virginia's Workers' Compensation Act, W.Va. Code
§ 23-1-1. A section of that Act, W.Va. Code § 23-2-6,
ordinarily provides a covered employer with immunity from
liability in a civil action for injuries to an employee sustained
in the course of and as a result of employment. The relevant
language, W.Va. Code § 23-2-6, states:
Any
employer subject to this chapter who shall subscribe and pay into
the workers' compensation fund the premiums provided by this
chapter or who shall elect to make direct payments of
compensation as herein provided shall not be liable to respond in
damages at common law or by statute for the injury or death of
any employee, however occurring, after so subscribing or
electing, and during any period in which such employer shall not
be in default in the payment of such premiums or direct payments
and shall have complied fully with all other provisions of this
chapter.
There is, however, an exception to this when an accident
occurs when the so-called Mandolidis facts are present.
The exception is established by W.Va. Code § 23-4-2, which
provides, in part:
(2)
The immunity from suit provided under this section and under
section six-a [§ 23-2-6a], article two of this chapter, may be
lost only if the employer or person against whom liability is
asserted acted with "deliberate intention". This
requirement may be satisfied only if:
(i)
It is proved that such employer or person against whom liability
is asserted acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of
injury or death to an employee. This standard requires a showing
of an
actual, specific intent and may not be satisfied by allegation
or proof of (A) conduct which produces a result that was not
specifically intended; (B) conduct which constitutes negligence,
no matter how gross or aggravated; or (C) willful, wanton or
reckless misconduct; or
(ii)
The trier of fact determines, either through specific findings of
fact made by the court in a trial without a jury, or through
special interrogatories to the jury in a jury trial, that all of
the following facts are proven:
(A)
That a specific unsafe working condition existed in the workplace
which presented a high degree of risk and a strong probability of
serious injury or death;
(B)
That the employer had a subjective realization and an
appreciation of the existence of such specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by such specific
unsafe working condition;
(C)
That such specific unsafe working condition was a violation of a
state or federal safety statute, rule or regulation, whether
cited or not, or of a commonly accepted and well-known safety
standard within the industry or business of such employer, which
statute, rule regulation or standard was specifically applicable
to the particular work and working condition involved, as
contrasted with a statute, rule, regulation or standard generally
requiring safe workplaces, equipment or working conditions;
(D)
That notwithstanding the existence of the facts set forth in
subparagraphs (A) through (C) hereof, such employer nevertheless
thereafter exposed an employee to such specific unsafe working
condition intentionally; and
(E)
That such employee so exposed suffered serious injury or death as
a direct and proximate result of such specific unsafe working
condition.
In instituting and prosecuting the present action the appellant sought to hold his nominal employer, Coal Carriers, Inc., liable on the ground that Coal Carriers, Inc.
had failed to provide for the regular inspection and
maintenance of the truck. He specifically stated:
"Coal
Carriers' failure to properly maintain and service the coal truck
plaintiff was driving created an unsafe working condition. . . .
Coal Carriers had a subjective realization and an appreciation of
the existence of the unsafe working condition and of the high
degree of risk and strong probability of serious injury or death
presented by the unsafe working condition so created."
He also alleged that by requiring him to operate the truck
under such conditions was in violation of well-known safety
standards. In pleading the case in this manner the appellant, in
effect, alleged that he fell within the Mandolidis
exception established by W.Va. Code § 23-4-2(ii). The appellant
claimed that Coal Carriers, Inc., had not provided him with
appropriate training for operating the vehicle.
The appellant had been hired by Circle Transport, Inc., and in the months before the accident, he had been paid only once by Coal Carriers, Inc. He had never completed paperwork for employment by Coal Carriers, Inc. These facts, and the fact that Coal Carriers, Inc., was jointly managed with Circle Transport, Inc., by the same individuals, led the appellant to claim that Coal Carriers, Inc., and Circle Transport, Inc., were involved in a joint venture and that, as a consequence, Circle Transport, Inc., was jointly liable with Coal Carriers, Inc., for his injuries. In the alternative, he claimed that
Circle Transport, Inc., was his actual employer, and that Coal
Carriers, Inc., was only his nominal employer.
As previously
stated, the truck in which the appellant was riding at the time
of the accident was owned by CLM Trucking, Inc., and was leased
to Coal Carriers, Inc. In instituting and prosecuting the present
action the appellant claimed that CLM did not disclose the actual
mileage on the truck prior to leasing the truck even though CLM
knew or reasonably should have known the actual mileage. He also
argued that the brakes on the vehicle were insufficient for the
gross volume weight that it was carrying and that the truck was
not in a safe operating condition at the time of the accident. He
asserted that prior to leasing the trucks, CLM Trucking did not
ascertain the conditions under which the truck would be used at
the Elkay Mining property, and did not ascertain if the truck was
the correct or appropriate piece of equipment for such a project.
The appellant
sought to hold Elkay Mining Company liable on the ground that it
had negligently maintained the haulway or roadway on which the
accident occurred. He further asserted that coal trucks hauling
coal on the property were, as a general rule, loaded far beyond
manufacturer's specifications.
In the course
of discovery following institution of the action, testimony and
documents were produced which showed that the appellant was
injured on March 23, 1992, when he jumped from the coal truck he
was operating after losing control of it as he was driving down a
steep hill on the road on the Elkay Mining Co. property. The
evidence also tended to show that at the time the appellant was,
at least nominally, an employee of Coal Carriers, Inc. CLM
Trucking, Inc. did own the truck which the appellant was
operating.
Other facts
showed that at the top of the road on the Elkay Mining property
there was a sign instructing truckers to stop and check their
brakes before descending. There was further evidence that there
were signs posted along the road directing truckers to keep their
trucks in second gear and establishing a speed limit of 15 miles
per hour. Other evidence showed that the appellant was
specifically trained never to jump from a truck in a runaway
situation, and that he was trained to place his truck in a ditch
in the event that he lost control of it. At the time of the
accident the appellant had been hauling coal and using the road
where the accident occurred in the same truck for approximately
two to three months, and he was solely responsible for loading
the truck and, in fact, had loaded his truck by himself
immediately prior to the accident in question.
The evidence
developed during discovery also showed that after loading the
truck on the day of the accident the appellant proceeded down the
road even though the truck was not in second gear. As the road
became steeper, he attempted to shift into second gear but was
not able to do so. When he lost control, he chose to jump from it
rather than ditch it as he had been trained to do. The Federal
Mine Safety and Health Administration conducted an investigation
of the accident and, upon concluding that investigation,
reported:
[T]he
cause of the accident was the driver's failure to maintain the
vehicle under control. Possible contributing factor was the
failure to follow the warning signs posted on the haulage road,
which requires drivers to keep their trucks in no higher gear
than second direct at any time period.
The report also stated:
It
could not be determined why Harmon did not elect to steer the
runaway truck into the drainage ditch located against the high
walls of descending haul road.
The appellant's
two possible employers, Coal Carriers, Inc., and Circle
Transport, Inc., moved for summary judgment before the case was
actually tried, and the trial court granted those motions. In
granting the motion of Coal Carriers, Inc. the court found that
Coal Carriers, Inc. was the appellant's employer and that it was
immune from liability because of the West Virginia Workers'
Compensation Act. In reaching this conclusion the Court, in
essence, found that the appellant could not establish the
so-called
Mandolidis facts detailed in W.Va. Code § 23-4-2(ii),
which would enable him to circumvent the Workers' Compensation
immunity. In particular, it appears that the court concluded that
the appellant could not show that any dereliction on the part of
Coal Carriers, Inc., was a "violation of a state or federal
safety statute, rule or regulation" as is required by W.Va.
Code § 23-4-2(ii)(C), to invoke the Mandolidis exception
to Workers' Compensation Immunity.
Although the
Court in its order did not detail the basis for granting Circle
Transport, Inc. summary judgment it is apparent that the
appellant's claim was either that Circle Transport, Inc. was in a
joint venture with Coal Carriers, Inc., and was thus jointly
liable with Coal Carriers, Inc., or that it was the appellant's
actual employer. Under either circumstance, the appellant would
have had to circumvent the Workers' Compensation immunity under
the Mandolidis exception, and as with Coal Carriers, Inc.,
the court apparently concluded that the appellant could not
establish those facts.
This Court has
indicated that:
A
circuit court's entry of summary judgment is reviewed de novo.
Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451
S.E.2d 755 (1994).
Further, in Syllabus Point 3 of Aetna Casualty & Surety
Company v. Federal Insurance Company of New York, 148 W.Va.
160, 133 S.E.2d 770 (1963), the Court stated:
A
motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and
inquiry concerning the facts is not desirable to clarify the
application of the law.
In reviewing documents filed in the present case the Court believes that, at the very least, further inquiry concerning the facts is desirable to clarify the question of whether the Coal Carriers, Inc., did violate any state or federal safety statute or rule or regulation. Facts were adduced which suggest that for a short distance, at least, the route over which the appellant was required to travel at the time the accident passed over a public highway. W.Va. Code § 24A-1-1 grants the West Virginia Public Service Commission the power to regulate and supervise transportation over a public highway. In exercising this power the West Virginia Public Service Commission has adopted in toto safety rules and regulations promulgated by the U. S. Department of Transportation, Federal Highway Administration, Bureau of Motor Carrier Safety. See W.Va. CSR § 150-9-1.7(a) and W.Va. CSR § 150-9-2.3. Among other things, the regulations promulgated by the U.S. Department of Transportation, Federal Highway Administration, Bureau of Motor Carrier Safety, require that a truck used on a public highway must have brakes adequate to control the movement of and to stop and to hold the vehicle, 49 CSR
§ 393.40. They also contain a number of other provisions
relating to brakes and specifically requiring that every motor
carrier systematically inspect, repair and maintain vehicles
under their control.
Although the Court believes that the facts developed during discovery are far from conclusive, those facts, when viewed in a light favorable to the appellant, suggest that the rules and regulations of the West Virginia Public Service Commission relating to the inspection and maintenance of vehicles may have applied at the time of the accident. This is supported by the fact that the appellant submitted to the court a letter from Thornton Cooper, legal counsel for the West Virginia Public Service Commission, in which Mr. Cooper expressed the opinion that the rules and regulations of the Public Service Commission applied to the facts of this case. The Court also believes that Coal Carriers, Inc., may have violated those regulatory requirements. Specifically, evidence was introduced showing that Coal Carriers, Inc., had only one mechanic, Bradley Bateman, responsible for maintaining trucks at the site where the appellant was working. Mr. Bateman possessed no certificate showing that he had been trained to work on braking systems of trucks even though such a certificate was required for anyone working on braking systems by 49 C.F.R. § 396.25, and, by adoption, by the West Virginia Public Service Commission. Within eighteen months prior to the appellant's accident Coal Carriers, Inc., had been cited by the Mine Health and Safety Administration for brake
problems. Furthermore, a picture of the appellant's truck
showed that "slack adjustors" on its brakes protruded 6
inches when there was evidence that they should not protrude more
than 1/2 to 1 inch, a circumstance suggesting that the brakes
were not properly maintained. Finally, the appellant's position
essentially was that the brakes would not stop the truck and
that, as a consequence, the accident occurred. To establish this,
two experts for the appellant, Rex Haynes and Bernie Cobb,
testified that the brakes were not properly maintained and were
not adequate to stop the truck at the time of the accident.
In this Court's opinion there was sufficient evidence in the case, if the doubts were resolved in favor of the appellant, to show what must be shown under W.Va. Code § 23-4-2(2)(ii) to circumvent the Workers' Compensation immunity of Coal Carriers, Inc. There was evidence that the brakes were not maintained, and the Court believes that the jury could have concluded that defective brakes could have created a high degree of risk to the appellant in this case. Coal Carriers, Inc., had previously been cited for brake problems, and a jury could have concluded that it had a subjective realization of the condition. The fact the truck passed over a public road suggested that the federal regulations relating to brakes, which were adopted by the West Virginia Public Service Commission, applied. Lastly, the appellant did suffer serious injury which, in this Court's opinion, the jury could have concluded was a proximate result of defective maintenance of the brakes.
As previously
explained, the appellant claimed that Circle Transport, Inc. and
Coal Carriers, Inc. were actually part of a joint venture, or
that, in the alternative, although he was nominally an employee
of Coal Carriers, Inc., he was actually an employee of Circle
Transport, Inc. To establish both these points, the appellant
produced evidence which showed that he was actually initially
hired by Circle Transport, Inc., and that there was no paper work
to show that he had ever applied for a job with Coal Carriers,
Inc., or that he had been hired by Coal Carriers, Inc. Further,
he showed that, except for one paycheck, he had been paid for all
work done hauling coal from the Elkay Mine from January to the
date of the accident, not by his nominal employer, Coal Carriers,
Inc., but by Circle Transport, Inc. To establish the joint
venture, the appellant adduced evidence showing that Circle
Transport, Inc. and Coal Carriers, Inc. were jointly operated by
the Cox Brothers.
In this Court's view the evidence adduced during discovery does raise the question of whether the claimant was an employee of Coal Carriers, Inc. or Circle Transport, Inc., or by both operating as a joint venture. Under the circumstances the Court believes that further development of the evidence is desirable to clarify the identity of the appellant's actual employer, and if that employer was actually Circle Transport, Inc., or a joint venture, the Court believes that the same Mandolidis circumstances would be present as are present in case against Coal Carriers, Inc.
Overall, the
Court believes that, at the very least, further development of
the facts was desirable to clarify the application of the law
insofar as Coal Carriers, Inc., and Circle Transport, Inc., were
concerned, and that as a consequence the trial court erred in
granting them summary judgment.
The case
proceeded to trial against CLM Trucking, Inc., and Elkay Mining
Company. At the close of the appellant's case, both CLM Trucking,
Inc., and Elkay Mining Company moved for directed verdicts. After
reviewing the questions involved, the trial court granted their
motions, and on appeal the appellant claims that the trial court
erred in directing verdicts for these defendants.
The Court has
indicated that where plaintiff's evidence does not establish a
prima facie right of recovery, a directed verdict is appropriate.
Totten v. Adongay, 175 W.Va. 634, 337 S.E.2d 2 (1995). In
Syllabus Point 5 of Wager v. Sine, 157 W.Va. 391, 201
S.E.2d 260 (1973), the Court also stated:
Upon
a motion for directed verdict, all reasonable doubts and
inferences should be resolved in favor of the party against whom
the verdict is asked to be directed.
The Court has also indicated that where questions of negligence and comparative negligence are involved, as in the case of the appellant's claims against CLM
Trucking, Inc., and Elkay Mining Company, those questions
ordinarily should be submitted to a jury. Specifically, Syllabus
Point 6 of McAllister v. Weirton Hospital Company, 173
W.Va. 75, 312 S.E.2d 738 (1983) states:
"'Questions
of negligence, due care, proximate cause and concurrent
negligence present issues of fact for jury determination when the
evidence pertaining to such issues is conflicting or where the
facts, even though undisputed, are such that reasonable men may
draw different conclusions from them.' Syl. pt. 1, Ratlief v.
Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981), quoting, syl.
pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135
S.E.2d 236 (1964)."
The appellant's theory for recovery against CLM Trucking, Inc. was that CLM Trucking, Inc. had failed to ascertain and as a consequence misrepresented the number of miles on the truck which it had leased to Coal Carriers, Inc. He also claimed that CLM Trucking, Inc., failed to provide an appropriate truck for the coal which it knew that Coal Carriers, Inc. would be hauling. He suggested that he was claiming that CLM Trucking had, at the very least, acted negligently. During trial evidence was introduced showing that the odometer reading on the truck involved in the accident was 53,000 miles. Expert evidence of severe wear on the trucks S-cam bushings and bearing adduced by the appellant suggested that the actual mileage on the truck exceeded 100,000 miles and raised the inference that CLM Trucking, Inc., had misrepresented the mileage when it leased the truck to Circle Transport, Inc. There was also evidence that the wear on the S-cam bushings rendered it impossible to adjust the brakes to proper specifications and affected
the braking capacity of the truck. Experts for the appellant
indicated that insufficient brakes were a cause of the accident.
Although CLM Trucking, Inc., offered evidence suggesting that the
53,000 mile reading was correct, Syllabus Point 5 of Wager v.
Sine, Id.,indicates that in assessing the propriety of a
directed verdict all inferences should be resolved in favor of
the party against whom the verdict is sought. In resolving the
inferences in such a manner here, the Court believes that the
appellant presented sufficient evidence to support the submission
of this claim against CLM Trucking, Inc., to the jury.
It appears that
the trial court directed a verdict against the appellant and in
favor of Elkay Mining Company on the ground that Elkay Mining
Company had breached no duty to the appellant, and that the
appellant's own negligence, or comparative negligence, was too
great to allow him to recover against Elkay Mining Company. There
was evidence that Elkay Mining Company had hazard trained the
appellant in accordance with its Federal Mine Safety and Health
Administration approved training plan, and the appellant offered
no evidence that he was not hazard trained. The appellant on
appeal, however, asserts that Elkay negligently failed to train
him properly. This was supported by the testimony of the
appellant's expert witness, Rex Haynes, to the effect that the
appellant was "not properly trained." Dr. Haynes'
testimony also proceeded as follows:
Q. .
. . Do you have an opinion whether the failure to properly
hazard train Mr. Harmon was also an
approximate cause of his being injured
and causing this accident on March 23, 1992?
A. .
. . I believe if he were properly hazard trained, there may
still be an accident, but it couldn't
have been this one.
The second
ground on which the appellant sought to hold Elkay Mining Company
liable was that Elkay Mining Company had negligently failed to
provide escape ramps or other adequate road safety structures to
protect a driver in the event that he lost control of a vehicle
on the haul road. The appellant's evidence clearly showed that
there were no escape ramps. Elkay, on the other hand, introduced
evidence suggesting that escape ramps were unnecessary and that
the ditches adjoining the road were adequate safety devices. To
counter this, the appellant offered evidence that the ditches
would not have stopped a runaway truck. Obviously, the inability
of the appellant to stop the truck was a factor which contributed
to the accident, and, in light of the conflicting evidence, on
whether Elkay Mining Company did provide adequate stopping
structures, we believe that this question should have gone to a
jury.
The appellant next asserted that Elkay Mining Company knew or should have known that trucks being used on its property were consistently overloaded and that it was negligent in allowing him to proceed over its road in such a condition. The appellant,
however, testified that he alone was responsible for loading
his truck and that he did so on the day of the accident. His
testimony proceeded as follows:
Q. And
all the drivers loaded their own trucks; is that correct?
A. Yes,
sir.
Q. And
you and you alone determined how much coal went into
your truck; didn't you sir?
A. Yes,
sir.
Also, John Tyler, a witness for the appellant, testified that
the Federal Mine Safety and Health Administration had no law on
the weight which could be carried by a truck or the amount of
coal which could be hauled by a truck. Apparently the trial court
concluded that in view of the fact that the appellant himself
loaded the truck on the day of the accident, the liability of
Elkay Mining Company could not be predicated upon the load which
the appellant was carrying. The Court believes that from the
evidence, when all the doubts are construed in favor of the
appellant, the jury might have found that Elkay Mining Company
had a duty to regulate the amount of coal carried apart from any
requirement of the Federal Mine Safety and Health Administration.
The question of whether the appellant's own negligence caused or
contributed to the accident was, under Syllabus Point 6 of McAllister
v. Weirton Hospital Co., supra, one for the jury.
As indicated
in Wager v. Sine, Id, the real question on a motion for a
directed verdict is not whether a party's evidence on a point
proves that point, but whether, when all inferences are resolved
in favor of that party, the evidence possibly could prove the
point. Although the evidence in favor of the appellant's claims
against Elkay Mining Company was hotly contested, the Court
believes that when the doubts are resolved in the appellant's
favor, the evidence possibly could support a verdict for the
appellant and that under the circumstances the trial court erred
in granting Elkay Mining Company a directed verdict.
For the
reasons set forth above, this Court believes that the trial court
erred in entering summary judgments in favor of Coal Carriers,
Inc. and Circle Transport, Inc., and that the Court also believes
that the trial court erred in directing verdicts for CLM
Trucking, Inc. and Elkay Mining Company. As a consequence, the
judgment of the Circuit Court of Logan County must be reversed
and this case must be remanded for trial.
The Court notes that the appellant makes a number of other assignments of error relating to evidentiary and procedural questions. Since this case must be tried, and since on trial the evidentiary and procedural questions must be revisited, and since it is possible that the trial court will reach different conclusions on those points, this Court believes that it is unnecessary to address all those evidentiary issues here.
For the reasons
stated, the various orders of the Circuit Court of Logan County
referred to herein are reversed, and this case is remanded for
trial.
Reversed and remanded.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4 (1992) ("Per curiam opinions . . . are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta. . . . Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not-to-be- cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.").
Footnote: 2 2 There were other defendants in the case, but the actions involving them are not in issue in this appeal.