Richmond.

#### Norfolk & Western Railway Company v. Coffey.

December 7, 1905.

1. *Pleading*— Filing *Pleas in Yacation*— Notice *to Counsel*— Irregu*larities.*— -After a case bas been matured at rules and docketed, the court may permit additional pleas to be filed in term, but there is no statutory authority for permitting such pleadings to be filed in vacation. Such permission, however, is frequently granted by the trial courts and the practice is unobjectionable under proper limitations. Opposing counsel should always be given notice of the application to file such pleas and an opportunity to resist it, or else to procure supplemental leave to file other pleadings and make up the issue. At the succeeding term the court may correct any, irregularities which have occurred.

2. *Pleading*— Failure *to Reply*— Rule—Non-Suit.—If a plaintiff fails to reply to a plea within the time prescribed by law, or order of court, the defendant should apply for a rule to compel him to do so, or in default thereof to suffer a non-suit.

3. Demurrer to *Evidence*— No *Issue*— Surprise—Setting *Aside the ' Demurrer*— Control *of Court.*— If, upon the argument of a demurrer to the evidence by a defendant, after the jury have rendered a conditional verdict, it is discovered for the first time that the plaintiff, by mistake, has failed to reply to one of the defendant’s pleas setting up a material defense, and the court and the plaintiff are taken by surprise, it is the duty of the court of its own motion — the whole matter being *in fieri,*— to set aside the demurrer to the evidence and the award of damages thereon, and to cause the issue to be made up on such plea, and order a new trial of the ease.

4. *Jeofails*— Want *of Issue Not Cured.*— In an action at law, the statute of jeofails does not cure the *non-joinder,*or want of issue altogether, and. no verdict or judgment can properly be rendered therein.

5. Master and *Servant*— Negligence—Safe *Place*— Case *at Bar.*— Upon the merits of the case, independently of the defense of the statute ' of limitations, which was withdrawn, it is held that the plaintiff in *666error was guilty of actionable negligence in failing to use ordinary care to keep its rock quarry in which the defendant in error was employed as laborer, in a reasonably safe condition, which negligence was the proximate and efficient cause of the injury complained of; and that this unsafe condition was not attributable to the work which was being done in the quarry, nor was the charge of contributory negligence on the part of the defendant in error sustained by the evidence.

. Error to a judgment of the Circuit Court of Rockbridge county, in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.

*Affirmed.*

This was an action of trespass on the case to recover damages for an injury inflicted on the plaintiff while working as a laborer in a rock quarry of the defendant. It appears that the plaintiff, L. 13. Coffey, who was a minor, was employed as a day laborer to work in defendant’s rock quarry at Corwall, in Rockbridge county, Va. When we went to work in the quarry, he had had but little, if any, experience in such business. After he had been at work about three months, a "stone, which had been loosened by alternate freezing and thawing, fell out of the side of the clift above the quarry, struck a rock and, glancing, hit him on the head, knocking him senseless and producing the injury complained of. Dangers of this nature had been observed by other quarry-men, who were men of experience in that kind of business, several days prior to the accident, and they had warned the foreman of it. The dangerous condition of the quarry could have been remedied, and the place rendered reasonably safe, by sending men up on the clift with ropes and picks and having the loose rock “clawed down.” One quarry-man had been struck by a falling rock a short while before the accident now under investigation, and had reported it to the *667foreman, and requested Rim to “claw down”' the side of the clift above, hut he delayed doing so until after the happening of the accident complained of. The plaintiff, owing to his inexperience, was ignorant of this dangerous condition, and did not know of the dangers to he encountered from the alternate freezing and thawing. Experienced workmen, however, did know of such dangers. In order to have rendered the quarry reasonably safe, this “clawing down” should have been done at least once a week, hut was not done at all. The loosening of the rock was not the result of blasting or other work done in the quarry, but of the alternate thawing and freezing above mentioned. -

*E. Morgan*Pendleton, *Joseph I. Doran*and *Marshall McCormick,*for the plaintiff in error.

*Greenlee D.*Letcher, for the defendant in error.

WniTTEL, J.,

delivered the opinon of the court.

The object of this action is to recover damages for personal injuries sustained by the defendant in error while at work as a laborer in the quarry of the plaintiff in error. A brief outline of the proceedings in the ease is essential to an intelligent apprehension of the questions presented for decision.

After issue joined upon the plea of not guilty, the defendant obtained leave of the court to file pleas of the statute of limitations within fifteen days from the date of the order; and liberty was also granted the plaintiff to reply generally or specially to said pleas. Accordingly, the defendant, within the time prescribed by the order and during the vacation of the court, filed with the clerk two pleas of the statute of limitations, but no issue was taken upon them *668by tbe plaintiff. At a subsequent term, a jury was empaneled to try tbe issue joined; and, at tbe conclusion of tbe testimony, tbe defendant demurred to tbe evidence, in wbicb demurrer tbe plaintiff joined. Whereupon tbe jury assessed tbe plaintiff’s damages at $2,000, subject to tbe opinion of tbe court on tbe demurrer to tbe evidence. During tbe progress of tbe trial tbe defendant introduced evidence tending to prove that more than twelve months bad elapsed between tbe date at wbicb tbe plaintiff attained, bis majority and tbe institution of tbe action; and upon tbe argument of tbe demurrer to tbe evidence it was insisted that tbe right of action was, therefore, barred by tbe statute of limitations. To repel that contention, counsel for tbe plaintiff presented an affidavit to tbe effect that be was ill at tbe time tbe defendant obtained permission to file tbe pleas in question, and knew nothing of tbe entry of tbe order or tbe filing of tbe pleas; that no record was made of tbe fact of such filing, either in tbe clerk’s office or at the succeeding term of tbe court; that no rule was asked or awarded against tbe plaintiff, requiring him to reply to tbe pleas; and that no issue was ever joined upon them; that tbe existence of tbe pleas and tbe fact that the statute of limitations was relied on by tbe defendant; were for tbe first time made known to counsel on tbe argument of tbe demurrer to tbe evidence and operated a complete surprise; that tbe plaintiff was full-banded with proof to meet that defense, but bad adduced no evidence on tbe subject, not conceiving tbe matter to be in issue upon tbe pleadings. Counsel also tendered replications to tbe pleas, and furthermore agreed that if tbe defendant would consent to file rejoinders to said replications, tbe verdict of tbe jury might be set aside, and tbe issue thus made submitted either *669in the court or jury for trial. But the defendant declined to accede to said proposal; and, thereupon, the court, disregarding the pleas, proceeded to overrule the demurrer to the evidence, and rendered judgment for the plaintiff.

It is alleged in support of that ruling, that the Oourt was without authority to permit the pleas to he filed in the first instance; and, in order to validate the proceeding, it was essential that the vacation filing should have heen ratified, or at least recognized, by an order at the succeeding term. •

It is true that after a case has heen matured for trial at rules, and docketed, while the court has ample power to allow additional pleadings to he filed during the term, there is no statutory sanction for permitting such pleadings to be filed in vacation, nevertheless, in conformity with a rule of practice which obtains throughout the State, such power is freely exercised by the trial courts in the practical administration of justice. Subject to proper limitation, the practice is not only unobjectionable, but tends to prevent surprise, and facilitates the preparation of cases for trial. Opposing counsel, however, ought always to be given notice of such application and opportunity to resist it; or else, if desired, to procure supplemental leave to file other pleadings and make up the issue. The court, at the next term, by analogy to the statutory control which it may exercise over all proceedings in the clerk’s office during the preceding vacation (Va. Code, 1904, §3293), exerts similar supervisory control over vacation proceedings done by leave of court, to correct irregularities and prevent abuses. Thus guarded, the practice is salutary and ought not to be disturbed.

Where a plaintiff fails to reply to a plea within the time prescribed by law, or order of the court, the correct practice is for the defendant to apply for a rule to compel him to do so, or in default thereof to suffer a judgment of *non prosequitur.*18 Ency. of PI. & Pr., 650.

*670That judgment is appropriate where the plaintiff, after appearance and before final judgment, fails to prosecute his action by neglecting to file his pleadings in due course. 4 Min. Inst. (3rd Ed.) Pt. I, p. 957; St. Pl. 136.

If that practice had been pursued by the defendant in the present instance, no doubt issue would have been joined on the pleas of the statute of limitations, and the dilemma* which subsequently confronted the court would have been avoided.

It is, however, apparent that both court and counsel were taken by surprise at the reliance of the defendant on the statute of limitations; and it would have been manifestly improper, under the circumstances, to have sustained that defense. When attention, was called to the matter, the whole in’oceeding upon the demurrer to the evidence was *in fieri,*and under the control of the court; and it appearing that by mistake the pleadings were in such condition that the merits of the case, upon a material ground of defense, could not be decided, the court ought, of its own motion, to have set aside the demurrer to the evidence and the award of damages thereon, and, having caused the issue.to be made up on the pleas of the statute of limitations, ordered a new trial of the case. *Taliaferro*v. *Gatewood,*6 Munf. 320; *Fairfax*v. *Lewis,*11 Leigh 233; *Ins. Co.*v. *Wilson,*29 W. Va., 528, 2 S. E. 888.

In an *action at law,*the statute of jeofails does not cure the *non joinder*or want of issue altogether, and no verdict or judgment can properly be rendered therein. The authorities on the subject will be found in a note to *Rowans*v. *Givens,*10 Gratt. (Va. Rep. Anno.) 249.

Other grounds of error have been pressed, but inasmuch as for the reasons assigned, the judgment must be reversed and a new trial had, upon which the evidence may not be the same, it would not be proper to express any opinion in regard to them. *671Tlie judgment is reversed and the case remanded for further proceedings to he had therein not in conflict with this- opinion.

By the CouRT

(on rehearing).

Upon the petitions, of both the plaintiff in error and defendant in error to rehear the judgment of this court, rendered in this case on the 26th day of September, 1905, at its place of session in the city of Staunton, reversing the judgment of the Circuit court of Kockbridge county, and remanding the case to that court for further proceedings to be had therein not in conflict with the opinion of this court.

It appearing from said petitions that the plaintiff in error has expressly waived its pleas of the statute of limitations, and that both parties desire a final disposition of this case upon the merits as presented by the record, independently of the defense of the statute of limitations: On mature consideration thereof, the court is of opinion that the plaintiff in error was guilty of actionable negligence in failing to use ordinary care to keep its rock quarry, in which the defendant in error was employed as a laborer, in reasonably safe condition (and that said unsafe condition was not attributable to the work which was being conducted in said quarry), which negligence was the proximate and efficient cause of the injuries suffered by the defendant in error; and that the charge of contributory negligence alleged against the defendant in error is not sustained by the evidence; doth so decide and declare.

Therefore, (without in any manner receding from the views expressed by this court in its opinion delivered in the case, as originally submitted on the pleadings), upon the case as now *672presented by the record, with the pleas of the statute of limitations withdrawn, it is considered by the court that the order heretofore entered in the case be set aside, and that the judgment of the Circuit Court be affirmed.

And it is further considered by the court that the plaintiff' in error pay to the defendant in error damages according to law, and also his costs by him about his defense herein expended.

Which is ordered to be entered in the order book here, and forthwith certified to the clerk of this court at Staunton, who will enter the same in the order book there and certify it to the said Circuit Court of Rockbridge county.

*Affirmed.*