157 Pa. 153 | Pa. | 1893
Opinion by
In this case there was considerable testimony showing that m certain portions of the mine, not remotely distant from the
The fatal element in the plaintiffs’ case, as it seems to us, is, that if there was negligence in not keeping the mine in a safe condition for the men to work in, it was the negligence of the mining boss who was a fellow workman with the deceased miner, and therefore not imputable to the defendant. It is true that, as to some of the defects, it was shown they had existed for several months, and it is contended that for that reason the case does not come within our decisions on that subject, but it is replied to this contention that the mine did not give way at those points but remained standing after the flood as it
We do not find in the record any evidence of notice to the company except the notice to the mining boss, and there was no proof that any members of the company had ever seen or visited the places where the defects in question existed. It was also the fact that the men continued to work in the mines after the notice the same as before, from which it is argued that the men did not regard them as serious. It was also fully proved that in all anthracite coal mines there is a constant leakage of water into the mines. An examination of the authorities shows that whether the negligence of the fellow .workman continues for a long or short time, the application of the rule of non-liability is not affected. In fact there is just as much, perhaps more reason, for enforcing it where the time elapsed after notice is longer than where it is shorter. For if the defects warned against are serious and the mining boss does not correct them, it is the clear, indeed the urgent duty of the workman having knowledge to notify the principal, and if he does not do this, under all the authorities, he continues his work at his own risk. It is to be remarked also that this company employed a mine foreman such as they were required by law to employ, and that there was no testimony in the case impugning in the least degree his fitness or his qualifications for the position. In the case of Waddell v. Simoson, 112 Pa. 567, the plaintiff’s son was killed by the fall of a slip or fault from the roof of the gangway at the edge of a breast. The negligence complained of was that the gangway, taken in connection with the width of the breasts opening'out from it on both sides, was too wide to be safe without artificial supports or proppings. It was claimed that the defendants were bound to keep a safe place for their workmen to work in and had not done so, because they had not supported the roof of the mine at the place in question with suitable props and timbers. The court below sent the case to the jury notwithstanding the requests for charge of the defendants, and the jury rendered a verdict for the plaintiff. This court reversed the judgment without a venire. Our brother Gordon, delivering the opinion, said: “ In the case of the Lehigh Valley Coal Company v.
As the negligence complained of in the foregoing case was the omission to prop the roof with suitable timbers, it was a continuing omission from the time the mine was opened at the point where the fall occurred, but that circumstance did not affect the decision of the case, nor change in the least the application of the rule which relieved the defendant of liability on account of the negligence being that of a fellow workman.
In Redstone Coke Company v. Roby, 115 Pa. 364, the action was brought to recover damages for personal injuries caused by an explosion of gas; the plaintiff was a miner who worked in the coal mine of the defendant, and the negligence alleged was in not furnishing proper ventilation for the mine, and we held that, if the defendant’s responsibility was to be measured “ by the results, we would have little difficulty in arriving at such
These remarks are as precisely applicable to tbe act of 1885, as they were to the acts of 1870 and of 1877. The fundamental idea as to all of them is that properly qualified persons, as designated in the several acts, shall be employed by mine owners with prescribed duties relative to the care and inspection of mines, and where this is done the mine owner has discharged his duty in this regard, and, if, having done so, accidents occur which can be traced to the carelessness or negligence of these persons, the owners are not liable.
Nor is there any force in the contention that, several months before the accident, T. M. Williams was in the mine upon one occasion in company with Corrigan, the mine foreman, and made a remark that the roof was bad and some more timbers must be put in. Williams was not in any position in regard to the mine at the time of the accident nor for some months— two or more — before the accident. There is no proof that any notice was given to him of any defective condition of the roof or mine at the time spoken of. He merely made a remark to Corrigan that the roof was bad and that some more timbers should be put in. It was not at the place of the accident and it does not appear whether more timbers were put in or not. But when he did hold a position in the mine it was only as inside foreman, according to the testimony. G. T. Morgan was superintendent of the mine at that time. At the time of the accident Reese was inside foreman and Corrigan was the mine foreman. No notice was given to Reese as to the condition of the mine. But, as inside foreman, even if Williams had received notice and had remained in that position until the accident, he
It seems to us that the authorities already quoted embrace all the features of this case, and that they prevent any recovery. Some claim was made that the piling of the culm on the outside surface of the ground was proof of negligence such as would hold the defendant company liable. But there are several difficulties in the way of this theory. In the first place there is no proof that it was piled any differently from the usual method followed in the coal region. The accumulations of coal dirt are a necessary result of the mining operations. They must be deposited somewhere on the surface and as a matter of fact they always are. We discover no evidence of any departure from the usual methods observed in such cases. There was, in times of storm, a small stream that ran through the depression or gully over which the culm was piled, but it is not proved, and in fact is not credible, that when there was any water there it would penetrate into the solid ground and through a considerable depth of rock, rather than through the pile of loose culm lying on the surface. Again there is no proof that the culm pile was in any way the cause of the breach into the mine at the point far below the surface where the flood of water and sand broke through. It would be altogether unsafe to intrust such a question to a jury to be disposed of by mere conjecture without proof. If there were some kind of definite proof in the cause that would authorize a legitimate inference to this effect, there would be force in the contention that it should be sent to the jury. But we can discover nothing but a basis of mere surmise or conjecture in the testimony on this subject. The culm had been in place for years without producing any such result or any suspicion of such result. Its weight did not cause any falling in of the roof of the mine below it; there is no proof as to what was the condition of the mine at the place where the breach took place, and nothing but an inference that because the culm pile was on the surface
But in any event, supposing that the conditions in the mine below, resulting from the presence of water and the crushing of timbers, were indications of danger from the culm pile, the workmen had far better opportunities of knowing it than the owners, yet they gave no notice to the owners. They called the attention of the mine foreman to it, but neither he nor the men regarded it as of any material consequence, as they all continued their work in the mine. If the foreman neglected to inform the owners and the accident resulted from that neglect, the owners are not responsible.
We have examined and considered carefully the several assignments of error as to the rejection and admission of testimony, and think they are without merit.
The witness Gallagher who was offered as an expert had never been in this mine nor done any work in it or about it. He had heard a considerable part of the testimony of the witnesses, but not all; he had done some work in other mines, was a school teacher and occasionally lectured on mines and mining and gave instruction to persons desiring to become mine bosses; his knowledge of coal veins, and of overlying and underlying strata, was entirely theoretical. A very long hypothetical question was put to him, at the end of which he was asked to state what in his judgment was the cause of the breaking in of the roof at the point where the accident happened. He was asked by the court whether he had ever examined this property at this place, and he said “ No.”
“ Q. Did you ever work in this mine ? A. In the mines of this county, no, sir.”
The next question propounded to the same witness covered by the eighth assignment, required his opinion upon a condition of things with which he had shown no familiarity or even acquaintance, and the court was certainly right in rejecting the question. The same remark applies to the testimony rejected under the second assignment, the fourth, and the ninth. The question of prudence in the ninth was the very question which the jury would have to decide, and they could only decide that from fapts and not from opinions. The court was entirely right in saying, “ the testimony of an expert is not admissible to establish A fact dedueible from evidence, which the jury is just as competent to decide as the witness.” The question put to
Judgment affirmed.