68 Pa. Super. 88 | Pa. Super. Ct. | 1917
Opinion by
The plaintiffs sue to recover damages suffered by them, by reason of the death of the husband and father
The plaintiffs, in their declaration, state the basis of their action to be (a) it was the duty of the defendant to furnish to their employee a safe place in which to work “and at all times keep and furnish timbers or posts in sufficient numbers and of sufficient length and character to be placed under the roof or ceiling of the room” where the plaintiffs’ decedent worked. “Notwithstanding this obligation, the said defendant carelessly and negligently failed, refused and neglected to provide a sufficient supply of posts of a proper kind, length and character to be set properly so as to hold up the roof of the room mine” where said decedent was at work.
' This statement of the cause of action at once differentiates the case at bar from our recent one, Mish v. Lehigh Valley Coal Company, 67 Pa. Superior Ct. 27. That case followed two late ones in the Supreme Court, namely, Bogdanovicz v. Susquehanna Coal Co., 240 Pa. 124, and Smiers v. Collieries Co., 252 Pa. 415. In each one of these cases a recovery was permitted because the act of negligence established by the verdict was a failure on the part of the employer to properly instruct an inexperienced employee as to dangers incident to his work which were not so imminent and obvious as to be apprehended by every reasonable man in the possession of his natural senses. In each of those cases there was an effort made by the defendant company to relieve itself of liability on the ground that the negligent act, if any, was the act of the' certified mine foreman and not that of the company. It was held that because our statute did not cast upon the mine foreman the duty and responsibility of giving such instructions, the owner could not be relieved of his general obligation along that line in any other way than by the performance of it.
On the other hand it has been many times held that where the negligent act causing the injury arose from
Our question then must turn upon an examination of the statute and an inquiry into the duties thereby cast respectively upon the owner, or his representative, and the certified mine foreman whose qualifications and duties are prescribed by the act itself. Article III of the Act of June 9, 1911, P. L. 756, deals with the duties of “mine superintendent” who may be regarded, for the purposes of this opinion, as the mine owner or operator because of his agency and employment. Section one declares “It shall be the duty of every superintendent, on behalf and at the expense of the operator, to keep on hand at each mine at all times a sufficient quantity of materials and supplies required to preserve the health and safety of the employees as ordered by the mine foreman and required by this act.” Section two provides “The superintendent shall not obstruct the mine foreman or other officials in the fulfillment of any of their duties as required by this act, but he shall direct that the mine foreman and all the other employees under him. comply with the law in all its provisions, especially when his attention is called by the inspector to any violation of the law.” Article III then proceeds through eight different sections to prescribe the duties of the
Article IV has for its subject the “mine foreman and his duties.” It first requires that in every mine where ten or more persons are employed the owner must employ “a competent and practical mine foreman.” It declares “The mine foreman shall have full charge of all the inside workings and of the persons employed therein.” It then proceeds to specify his duties, if the mine be a gas producing mine, and generally with regard to its proper ventilation. In Sections 6 and 7 the legislature makes it plain its intent was to rely upon the judgment of the mine foreman rather than on that of the owner as to the number or quality of mine props and timbers necessary to keep the working places in a reasonably safe condition. As we have already seen, the obligation is on the mine owner to keep on hand a sufficient quantity, not only of such props and timbers, but of all othey necessary “materials and supplies required to preserve the health and safety of the employees as ordered by the mine foreman and required by this . act.” We quote from Section 6 of Article IY, “The mine foreman shall direct and see that every working place is properly secured by props or timbers, and shall see that no person is directed or permitted to work in an unsafe place, unless it be for the purpose of making it safe. He shall also see that the workmen are provided with sufficient props, cap-pieces, and timbers of suitable size, which shall be delivered at the working faces, or as near thereto as they can be conveyed in mine cars, when requested by the workmen, in accordance with section seven of this article.” Section 7: “Every workman
The record is barren of any particle of evidence that the mine foreman ever ordered from the superintendent any mine props or caps that were not promptly furnished or that any miner ever in any way made a complaint to the superintendent or brought to his knowledge, either in the manner prescribed by the rules of the mine or otherwise, there was any shortage of mine props or timbers. The absence of such evidence readily distinguishes the case at bar from Collins v. Northern Anthracite Coal Co., 241 Pa. 55, and Sudnik v. Susquehanna Coal Co., 257 Pa. 226. The opinion of Mr. Justice Pot-tee in the case first cited marks the line of distinction. After quoting with approval what has hereinbefore been quoted from the language of Mr. Justice Elkin in the Reeder case, the opinion goes on: “But in the present case there was evidence which showed that the superintendent was notified of the necessity for props, and of the failure of the mine foreman to furnish them, and that the superintendent then said he would see that the props
There is no evidence of the size of the mine, the number of actual rooms or working places or of the men employed to operate them, nothing as to the number of mine posts necessary to reasonably protect the men in their working places, nothing as to the quantity of such posts purchased by the company and available to answer any requisition of the mine foreman. Yet every book, record, report, etc., in the possession of the company could have been produced in evidence on a legal demand for its production by the plaintiffs. We are not surprised therefore that the learned and experienced trial judge, in his opinion refusing to enter a judgment n. o. v., declared: “As we remarked at the argument of this motion and also during the trial, the plaintiffs’ testimony, showing negligence on the part of the defendant company, was meager and to the court unsatisfactory, etc.” But we feel, compelled to go a step further and give it as our judgment that the evidence furnishés no sound or enduring basis for a recovery against the defendant. Por it is apparent that in respect to the coal mining industry in Pennsylvania, our statutes have wrought many changes in the old-time relation of master and servant. The former is no longer in the untram
It is to be regretted that the prosecution of an industry, so vital to the people of this State as the mining of coal, involves much hazard even where the mines are conducted in the light of the best knowledge attainable by those who operate them. Probably for this reason the legislature has not seen fit to rely on the knowledgé, the judgment or the care of the mine operator as to the manner in which the inside workings shall be maintained and the operations conducted. It has set up a class of men whose qualifications are prescribed and whose fitness is to be ascertained through methods declared by the statutes. The mine operator is obliged to employ one or more of these experienced men whose fitness has been declared by certificate. The statute, in establishing these responsibilities on the part of the mine foremen, has given to them complete and drastic power to enforce their demands upon the mine owner and thus responsibility and authority have gone hand in hand to these representatives of the State’s police
The judgment is reversed and the record is remitted to the court below with direction to enter judgment for the defendant n. o. v.