146 N.Y.S. 107 | N.Y. App. Div. | 1914
Plaintiff, eight and one-half years employed in coal mines, and for three years of the time in defendant’s employment, interrupted his service for a brief time, and then entered defendant’s mine to get work. He rejected proffered opportunity, and while returning stopped at a place called a gangway, through which was a car track and from which one or more chambers radiated, through which cars came. Upon
The complaint was dismissed upon the ground that the mine was under the control of a certified mine foreman, whose employment was imposed by the State. His power was as broad as the statute and during his retention was beyond the interference of the owner of the mine, unless the incompetency of the mine foreman or his neglect were directly brought to the owner’s notice. The questions involved are whether the proximate cause of the accident was within the control of the mine owner and whether the plaintiff is affected by the act. The sway of the mine foreman it is inferred extends to all functions in operation. He rules in such regard the interior of the mine, even to the exclusion of the master, except as to special duties that the law places on the master and which may not be delegated. When and whither cars shall run, under what regulations, signals, warnings or discipline he determines, and his authority is exclusive. In such case the master, by compulsion of law deprived of participation in operation, is acquitted of responsibility. It would he illogical and unjust to confine the conduct of the works to the skill and discipline of a mine foreman and to impute his negligence to the owner constrained to surrender authority to him.
I find no decision of the courts of Pennsylvania that decides specifically that the owner is absolved from liability for injury caused by the negligent failure of a worker in the mine to give warning of the approach of the car or by negligent omission to furnish lights, but the duty is so intimately interwoven with others in the operation of the mine that the conclusion is enforced. There are two statutes, one, act of June 2, 1891 (Penn. Laws of 1891, p. 176, Ho. 177), relating to mining of
In Durkin v. Kingston Coal Co. (171 Penn. St. 193) are stated the reasons for exempting the owner. In the opinion it said of the statute: “ Through it the lawmakers say to the mine owner ‘ You cannot be trusted to manage your own business. Left to yourself you will not properly care for your own employees. We will determine what you shall do. In order to make it certain that our directions are obeyed we will set a mine foreman over your mines with authority to direct the manner in which your operations shall be conducted, and what precautions shall be taken for the safety of your employees. You shall take for this position a man whom we certify to as competent. You shall pay him his salary. What he orders done in your mines you shall pay for.’ ” It was decided that the owner was not responsible, notwithstanding the provision of the statute imposing liability. The case has been followed without interruption in decisions, for a review of which I recommend the opinion in Pittsburgh-Buffalo Co. v. Cheko (204 Fed. Rep. 353). The authority of the earlier cases has not been diminished by decisions that there are duties prescribed by statute that are not delegable to the mine foreman (O’Brien v. Penna. Coal Co., 237 Penn. St. 44), or that the master may be liable for failure to instruct inexperienced employees placed in the mine (Bogdanovicz v. Susquehanna Coal Co., 240 Penn. St. 124), or for negligent acts or omissions by the owner or his agent. (Reeder v. Lehigh Valley Coal Co., 231 Penn. St. 563; Pauza v. Lehigh Valley Coal Co., Id. 577.) But the primary decision is that a mine foreman is not the agent of the owner but is a person whose skill and capacity is certified by the State and of a class from which the owner must choose. I make excerpts from expressions indicating the breadth of the statute. “ The duty of the mine owner is to employ competent bosses or foremen to direct his operations. When he does this he discharges the full measure
In Hood v. Connell Anthracite Mining Co. (231 Penn. St. 647, 652) it is said: “ The character of his duties as mine foreman is not necessarily changed because he may hire or discharge men working under him, or suggest where and in what capacity the men shall work, or how the entries shall be driven, or the mines be developed. He may do all of these things and still be acting in his capacity as mine foreman. Indeed, if he is a competent mine foreman, which the law presumes him to be, he is better qualified to do all of these things than anyone else. The test is not the particular acts he may do in connection with the underground workings,' but - whether he has the charge, control and supervision of these workings to the exclusion of any other authority. When he has this exclusive supervision no one can dispute his authority as mine foreman, and even the owner cannot interfere with the performance of his duties. It is the duty of the mine foreman to see that all the statutory requirements intended to safeguard the health and lives of the men are properly enforced. * * * It sometimes happens that the mine owner does not commit the exclusive charge of the interior workings to the mine foreman, but acting through his superintendent undertakes to exercise authority over certain parts of the interior workings without reference to the duties of the mine foreman. When this is done the owner may
One Jones was called as a witness for the plaintiff, and after testifying that all the miners and runners and other people in the mine were in the employ of the defendant, who owned the mine, he was allowed to testify that he was a certified miner; that he employed the men with power to discharge; that he had charge of the operation of the mine underground. c ‘ I did have charge of the operation of that mine underground. I did have full charge of it. I did have full and complete control of it. * * * I did have charge of the location of tracks in the mine. I did have charge of the rules and systems of signals that existed in the mines. In exercising the functions which I have just described, no one did exercise control over me.” Again he says: “ I can adopt any precautions that I see fit in that mine without regard to the wishes of the Wilkesbarre Coal Company, and any system of signals that I desire I can institute, no matter whether it uses up all the profits or not.”
The decisions have to do with physical matters in the mine, and specific reference is not made to warnings, signals and the direction and command of men, yet the scope and power ascribed to the mine foreman is such that such duties must fall within it. It is true that in Bogdanovicz v. Susquehanna Coal Co. (supra), where the duty of instruction was involved, it is said that the owner can be relieved only “by pointing to a provision of the statute which imposes such duty on the mine foreman and relieves the owner or operator.” But the case at bar falls within the statute as construed by the courts of the State.
The next question is whether the statute is applicable to the plaintiff, who at the time was not regularly working in the mine, but who went there to obtain work. It may be considered that at the time he was hurt he was working in the mine,
These conclusions lead to the affirmance of the judgment, with costs.
Present —Jenks, P. J., Thomas, Bioh, Stapleton and Putnam, JJ.
Judgment unanimously affirmed, with costs.