Burns v. Vesta Coal Co.

223 Pa. 473 | Pa. | 1909

Opinion by

Mr. Justice Potter,

In this action the plaintiff sought to recover damages for personal injuries, resulting, as alleged, from the negligence of the defendant. It appears from the evidence that in the operation of its coal mines by the defendant, the coal is loaded in cars which are assembled in trains in the mine by electric motors, and these trains are then hauled out by other larger and more powerful motors. The gathering motors were equipped with a seat in the rear for the motorman, which seat was low enough to require a portion only of the body of the motorman to extend above the platform of the motor. A similar seat on the front end was provided for the use of an assistant to the motorman, who was called the “snapper,” and whose duty it was to throw switches, make couplings, and keep a general lookout ahead on the track, and in various ways assist the motorman. The “snapper” usually rode on the front end of the motor. When the plaintiff applied to the defendant company for employment he stated in answer to a question, that he had never worked with a motor, but he had been a mule driver in a coal mine and had discharged duties in gathering and handling cars, somewhat similar to those of a “snapper.” He was then given employment as a “snapper” and went to work on a five and a half ton motor. After working two days he and the motorman with whom he was working were assigned to an eight-ton motor, constructed differently and with a higher platform or top, and without a seat for the' “snapper” such as had been provided on the motor upon which he was first engaged. The evidence tends to show that no instructions were given to plaintiff as to where he should ride upon the larger motor, and that no warning was given him against the danger from low places in the roof of the mine, which would not permit of passage while sitting upon the top of the motor; nor does it appear that he had any knowledge of the existence of such low places, which were liable to catch and injure him. Prior to the accident the plaintiff sat upon the top of the front end of the motor, and while in this position, as it was moving to the place in the mine where work was to begin, and while he was attending to his duties, looking ahead for switches and obstructions on the track, a low place in the roof was encountered which would not permit of passage without crowding plaintiff from the motor, and in consequence he fell on the outside of the track, with one leg over the rail, and was run over and so injured that amputation of the leg became necessary.

Upon the trial, binding instructions in favor of the defendant were refused, and the trial judge submitted to the jury the questions of the negligence of the defendant and the contributory negligence' of the plaintiff. The verdict was for the plaintiff, and from the judgment entered thereon, the defendant has appealed, and has filed ten assignments of error. The first, second and tenth relate to answers to points. In the first assignment it is alleged that the court erred in refusing to affirm without qualification defendant’s sixth point, which was as follows: “If the jury believe from the evidence that the entry was finished in the ordinary manner, and that the plaintiff knew, from his former experience as a miner and driver, that the entry roof would be of varying height, they must find that the plaintiff assumed the risk as one ordinarily attendant upon the employment, and the verdict must be in favor of the defendant.” The trial judge answered this by saying, “That would be affirmed, if you find that it was such a low place in that mine as was ordinary and common, and that so generally known as to bind this man, whether he had been through it personally or not, but knew about the mine.”

The answer gave to the defendant the benefit of more than it was entitled to. For the negligence of which complaint is made, lay in the fact of placing the plaintiff upon a motor too large to permit him to ride upon it and pass through certain portions of the mine without danger of being crushed, or crowded off, and that without giving him warning of the danger. Certainly the defendant has no reason to complain of this instruction, and we therefore dismiss the first assignment of error.

Complaint is made in the second assignment that the trial judge did not affirm without further comment the seventh point, in which the court was requested to charge the jury that the Employers’ Liability Act of June 10, 1907, P. L. 523, is not retroactive and had no application to this case. The point was properly affirmed, but the trial judge added a confused statement which could hardly have been intelligible to the jury. Its relevance is not apparent, but we do not see in the statement anything which would necessarily mislead the jury or warrant a reversal of the judgment.

The third and fourth assignments are to the refusal of defendant’s offer of evidence to show that in mines where a fault in the roof like the one in question occurred, it was the ordinary method of constructing entries to make the height only sufficient to permit the passage of loaded cars of coal, without striking the roof and dislodging the coal from the cars. This evidence was properly refused, If the practice was a dangerous one, it mattered not that it was common. Customary negligence would be no excuse for the defendant. Besides, the negligence charged here was not the maintenance of the low roof alone, but the failure to warn plaintiff against the peril of attempting to pass under it while riding upon the large motor provided for use in the mine. These assignments are therefore dismissed.

In the fifth assignment counsel for appellant complains of the exclusion of a question, which the witness answered before the objection was made. The answer was not stricken out, so that defendant was not in any way harmed by the ruling, even if it had been erroneous, which it was not. In the sixth assignment counsel for appellant complains of the overruling of a question as to the proper position for the “snapper” to occupy while riding upon the front end of the motor. The form of-the question was objectionable, as it called merely for the opinion of the witness. He was allowed to state the facts as to the manner in which his men rode, and this was all that the defendant was entitled to. We see nothing objectionable in the portions of the charge assigned as error in the seventh, eighth and ninth specifications. The court referred to evidence tending to show that the roof was so low at one place as to scrape coal off the cars at times, and left it to the jury to say whether or not prudence required the employer to give notice of the existence of such a place, to an employee who had never been in that portion of the mine before. He further asks the jury to say whether, under the circumstances of the change from one motor to the other, it was reasonable and prudent for the plaintiff to sit where he did, on the higher motor. We think the evidence was sufficient to justify the remarks of the court as to all these various phases of the case. The comments in connection with the refusal of the eighth point, which requested binding instructions for the defendant, were by no means clear, but taken in connection with the general charge we do not think that the jury could have been misled by them.

It is evident that the change from the smaller motor, provided with a low seat, to the larger and higher motor, which was without any seat, increased the danger to the employee whose duty required him to ride upon the motor. The danger was intensified by the inexperience of the plaintiff, and his lack of acquaintance with the'entries in the mine. It was a fair question for the jury to determine, whether under the circumstances prudence did not require the employer to warn the plaintiff to look out for the low places in the roof. This was particularly true because of the increased danger arising from the change from the smaller to the larger motor, the latter taking more space in the entry, and being without a seat for the “snapper.” “It is the duty of the master to warn his servants of new or increased dangers caused by a change in his machinery, appliances or place or methods of work, and he will be held liable for injuries resulting from his neglect of duty in this respect:” 26 Cyc. L. & Pr. 1169. The same principle is more fully stated in 4 Thompson on Negligence, sec. 4066: “ If the master makes any change in his business or in the structure of his premises, which exposes the servant to increased danger, of the nature and extent of which the servant is not aware, the master is bound, in the exercise of the same duty, to instruct the servant as to the character of the new risks to be run, unless they are open and visible, or such as by the exercise of ordinary care the servant will see.”

In the case at bar the plaintiff had been working in the defendant’s mine but two days, and during that time he rode upon a motor which carried him safely through the entries, when seated upon the front end of the motor. He was then transferred to the larger motor without warning that he could not safely ride upon it through the entries. He testified that he had not before been through the entry where he was hurt, and that he had no knowledge of, nor any notice of, the low place in the roof, and no warning of danger. Upon the record as a whole, we are of opinion that the case was properly for the jury, and in the manner of its submission we see no substantial error which would justify a reversal of the judgment. It is therefore affirmed.