225 F. 913 | 2d Cir. | 1915
Lead Opinion
This action was brought to recover damages in the sum of $30,000 for the death, on August 25, 1913, of George Yagaszki. At the time of his death he was 29 years of age, and was employed as a miner in a bituminous coal mine belonging to the defendant, and located at Jenner, in Somerset county, state of Pennsylvania. His death occurred while he was at work in mine No. 119, butt heading No. 8, second right, and was caused by a mass of rock which became detached from the roof of the heading, which struck and crushed him. There was no one with him at the time, and no one witnessed what occurred. The action is brought by the widow. The Constitution of the state of Pennsylvania provides that in case of death from injuries the cause of action shall survive, and that no act of the General Assembly shall limit the amount to be recovered in such cases. An act passed in that slate in 1855, still in force, provides that the persons entitled to recover damages for any injury causing death shall be the husband, widow, children, or parents of the deceased, and that the sum recovered shall go to them in the proportion they would take his or her personal estate in the case of intestacy, and that without liability to creditors; the law of Pennsylvania on the subject being similar in import and character to the law of New York in that regard.
The action is brought by the widow of the deceased for the benefit of herself and a son of the age of six years. The theory of the action is that it was the duty of the defendant to keep the heading in the mine in which the deceased was at work in a safe and secure condition, and to properly inspect the same, and to support the roof with suilicient timbers or other suitable means; that instead of performing its duty it negligently permitted the place to be and remain in an unsafe, dangerous, and insecure condition, although its condition might have been discovered and ascertained by a proper inspection thereof; and it is averred that there was no negligence or want of care on the part of.the deceased contributing to his death. The case was submitted to the jury, and a verdict was returned in favor of the defendant.
Article 3, section 1:
“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 all materials and supplies required to preserve the health and safety of the employés, as ordered by the mine foreman and required by this act. If for any reason the superintendent cannot procure the necessary materials or supplies as aforesaid, he shall at once notify the mine foreman, whose duty it shall be to withdraw the men from the mine or portion of mine, until such materials or supplies are received. The superintendent shall, at least once every week, read, examine carefully, and countersign all reports entered in the mine record book by the mine 'foreman, and if he finds on such examination that the law is being violated in any particular, he shall order the mine foreman to stop said violation forthwith, and shall see that his order is complied with.”
Section 2:
“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 employés 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. At any mine where a superintendent is not employed, the duties that are herein prescribed for the superintendent shall devolve upon the mine foreman, in addition to his regular duties.”
Article 4, section 1, provides that:
“The mine foreman shall have full charge of all the inside workings and of the persons employed therein, in order that all the provisions of this act so far as they relate to his duties shall be complied with, and the regulations prescribed for each class of workmen under his charge carried out in the strictest manner possible.”
The section also gives the mine foreman authority to appoint assistants when the workings are so extensive that he is unable personally to carry out the requirements of the act.
Article 4, section 6, provides that:
“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.”
Section 7 provides:
• “Every workman in need of props, cap-pieces, and timbers shall notify the mine foreman or the assistant mine foreman (or any other person delegated by the mine foreman) of the fact, at least one day in advance, giving the number, size, and length of props, cap-pieces, and timbers required. In case of emergency, the timber may be ordered immediately upon the discovery of danger. If for any reason the necessary timbers cannot be supplied when required, the mine foreman or assistant mine foreman shall instruct the workmen to vacate the place until the timber needed is supplied.”
"The mine foreman shall direct and see that as the miners advance in their excavation all dangerous and doubtful pieces of coal, slate, and rock overhead are taken down or at once carefully secured against falling on the workmen. Any workman who neglects to carry out, or disobeys, the instructions of 1he mine foreman or his assistant in regard to securing his working place, shall be suspended or discharged by the mine foreman.”
Section. 10:
“The mine foreman shall give prompt attention to the removal of all dangers reported to him by his assistants, the fire boss, or by any other person working in the mine, aud in ease it is impracticable to remove the danger at once, he shall notify every person whose safety is menaced thereby to remain away from the portion where the dangerous conditions exist. * * * Instructions shall be given the men by the mine foreman, assistant mine foreman, or fire boss, or other authorized person, as to when, where, and how timber shall be placed so as to avoid accidents from falls, and also, in a general way, how to mine coal with safety to themselves and others.”
Article 25.—Special Buies.
Duties of Miners.
“Bule 1. The miner shall examine his working place before beginning work, and take down all dangerous slate, or otherwise make it safe by properly timbering it, before commencing to mine or load coal. * * * Should he at any time find his place becoming dangerous from gas or roof or from any unm.ual condition that may arise, he shall at once cease working and inform the mine foreman or the assistant mine foreman of said danger, but before leming his place he shall put some plain warning across the entrance thereto to warn others against entering into danger. * * * He shall order ail props, -cap-pieces, and all other timbers necessary, at least one day in advance of needing them, as provided for in the rules’of the mine. If he fails to receive said timbers, and finds his place unsafe, he shall vacate it until the necessary timbers are supplied. * * * The miner, shall remain during working hours in the working place assigned to him by the mine foreman or the assistant mine foreman, and he shall not leave his working place tor another working place without the permission of the mine foreman, assistant mine foreman, or fire boss, and he shall not wander about the hauling roads or enter abandoned or idle workings.”
General rules:
"Buie 7. All employés shall notify the mine foreman or the assistant mine foreman of the unsafe condition of any working place, * * * when said conditions are known to them.”
Act June 9, 1911 (P. L. 756).
As this court is bound by the construction given to this act by the courts of Pennsylvania, we call attention to the decisions of the Supreme Court of that state for the purpose of showing that the mine foreman is the representative of the state and not of the mine-owner, and that the latter, as already indicated, is not liable for injuries which result from the former’s neglect of, his statutory duties.
In Durkin v. Kingston Coal Company, 171 Pa. 193, 33 Atl. 237, 29 L. R. A. 808, 50 Am. St. Rep. 801 (1895) the court declared that:
“Under the operation of this statute the mine foreman represents the commonwealth.”
And the court decided ihat the mineowner is not liable for an injury arising from the negligence of the foreman. The court said that a
In Golden v. Mt. Jessup Coal Company, Limited, 225 Pa. 164, 73 Atl. 1103 (1909), it was held that the foreman was the state’s representative and that:
“An employer cannot be held liable for the mistakes or ineompetency of the state’s representative.” ''
In Wolcutt v. Erie Coal & Coke Company, 226 Pa. 204, 75 Atl. 197 (1910), the court declared:
“We have uniformly held that a mine foreman is a fellow servant of the other employes engaged in the mine, and in none of our cases has it been suggested that he is a representative or agent of the owners. Being a fellow servant of the other laborers in the mine, the owner is not liable for injuries resulting to them by neglect of the foreman to perform his statutory duties. It may therefore be admitted that if Mitchell was a duly certified mine foreman, and was engaged only as such in this mine at the time the plaintiff was injured, and the plaintiff’s injuries resulted from the foreman’s negligence, the defendant company would not be liable.”
It was declared that the duty of the mine fpreman is to see that the interior of the mine is kept in a proper and safe condition, and that in that position he is supreme, and that the superintendent—
“who is the representative of the owner, cannot interfere with him in the discharge of his duties. While his powers are extensive and ample in regulating and controlling the internal operations of the mine so as to protect those employed therein, yet he is in no sense the agent or representative of the owner of the mine.”
In Dempsey v. Buck Run Coal Company, 227 Pa. 571, 76 Atl. 745 (1910) it was held that a mineowner is not responsible for injuries to a workman due to negligence of the foreman in the discharge of his duties under the law.
In Reeder v. Lehigh Valley Coal Company, 231 Pa. 563, 575, 80 Atl. 1121, 1125 (1911) the court said:
“It has been held in a long line of cases that the mine owner is not liable for the negligent acts of a mine foreman committed in the discharge of duties imposed upon him by law and in and about those workings over which he exercises supervision. From Lehigh Valley Coal Co. v. Jones, 86 Pa. 432, and Durkin v. Kingston Coal Co., 171 Pa. 193 [33 Atl. 237, 29 L. R. A. 808, 50 Am. St. Rep. 801], to Golden v. Mt. Jessup Coal Co., 225 Pa. 164 [73 Atl. 1103], this rule has remained unbroken. It may therefore be said to be settled law.”
‘•After considering all the proofs, we are of opinion that the evidence relied upon is too vague, indefinito, and lacking in detail to justify a finding that the siijiO'-inteinlent should have understood that the mine foreman was in default and that an emergency existed which required the immediate delivery of the posts.”
In that case the accident did not occur on the same day that the request was made but on the day after. So in the case at bar the accident was on the next working day after the request.
*920 “Unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than 100 miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause.”
This provision is found in Judiciary Act Sept. 24, 1789, c. 20, § 30, 1 Stat. 90 and has been in force ever since. It is urged that this statutory limitation on the use of depositions is intended to protect the opposite party, and that the party who takes a deposition stands in no position to utilize a restriction which the opposite party does not insist-upon. The .rule as laid down by Weeks in his Law oí Depositions, § 466, is as follows:
“It is held by a large preponderance of authorities that, where one of the parties to a' cause obtains a commission to examine witnesses, the other party has a right to call for the deposition and make use of it at the trial. And many cases hold that generally a deposition taken by one party may be used in evidence by the other, if the former fails or refuses to read it himself. And it is held that if one party takes a deposition, and declines to read it, the adverse party may read it, although the witness would have been incompetent, if offered-by him.’.’
The author, however, makes no reference to the act of Congress, and it does not appear that he had it in mind in laying down the rule above quoted. Professor Wigmore, in his excellent work on Evidence (volume 2, § 1416, pp. 1786, 1787), in discussing the use of depositions, although making no reference in this connection to the act of Congress, states his opinion as follows:
“It [the deposition] is offered as the substantive testimony of that witness, whose testimony has not as yet been heard. There is, therefore, no reason why one party rather than the other should be allowed to' resort to a deposition without showing the deponent unavailable in person; and this the nontáker, as well as the taker, must do before using it.”
And he cites in support of his view Gordon v. Little, 8 Serg. & R. (Pa.) 532, 548, 11 Am. Dec. 632 (1822); Sexton v. Brock, 15 Ark. 345, 349 (1854). Elliot v. Schultz, 10 Humph. (29 Tenn.) 234, 236 (1848), also supports the same doctrine.
In Whitford v. Clark County, 119 U. S. 522, 7 Sup. Ct. 306, 30 L. Ed. 500 (1886) the court held it error to read a deposition the witness being in the court at the time. But in that case the party who read the deposition was the party who took it.
In Yeaton v. Fry, 5 Cranch, 335, 3 L. Ed. 117 (1809) the court had .before it a somewhat analogous question. The act of, Congress requires that one proposing to take a deposition shall give notice to the opposite party. The deposition was taken by the defendant without notice to the plaintiff. At the trial the plaintiff used the deposition over the defendant’s objection. Chief Justice Marshall, speaking for the court, said: . _
• “The defendant is not at liberty to except to his own depositions, because he does not produce proof of his having given notice to the plaintiff.”
In Smith v. State, 145 Wis. 612, 130 N. W. 461, a deposition taken on behalf of an accused person was placed on file in the court. It
“If an accused person sees fit to causo a deposition to> be taken in his behalf and made a part of tlie court files existing at the time of the trial, lie thereby waives his constitutional right to meet the witness face to face, so far as otherwise his adversary would be precluded from using such deposition whether offered by him or not.”
The case at bar is not analogous with that decided in Wisconsin. Tlie consl itutional provision which the Wisconsin court held an accused person could waive simply provided that such person “shall enjoy the right * * * to meet the witnesses face to face.” But the act of Congress involved here does not simply give an adverse party the right to demand that a witness be placed on the stand, if wilhin the court’s jurisdiction and available. It positively prohibits the use of the deposition unless it appears to the court that the witness is dead, or gone out of the United States, or to a greater distance than 100 miles from the place where the court is sitting, etc. In the face of this positive prohibition, it is not within the power of the court to allow a deposition to be used which the act says shall not be used, and such power cannot be given by the consent of this defendant. The deposition clearly should not have been read.
“Mr. Zipay, in your opinion as a practical miner in a mine, could a man woiking alone have taken down with safety to himself a piece of rock five or six inches thick, six to nine feet sanare?”
He answered:
“No, one man cannot; there must be a helper. I have worked in mines about five years.”
The rode described was the one which fell and killed the deceased.
“I will describe the condition of eighth butt heading on Saturday afternoon preceding the Monday of this accident. You want me to explain the place, etc. Well, I went in there at 3 o’clock, as nearly as I can remember, and looked around his place, and picked up a pick, as is our custom of doing, and sounded the roof, and found a piece of rock that did not sound very good; he had it in pretty fair shape; he had a prop right in the center of the road, and on both sides; and this prop in the center of the road, in order for him to extend his track, would have to be taken out; so I told him that he would either have to make that piece of rock safe or take it down, and he said that he would; ■ he said that he would probably come in early Monday morning, and he would attend to it.”
He also testified that the rock which he found down on Monday morning, and which it is admitted was the rock which killed deceased, was the rock which he on Saturday advised the deceased to remove or make safe. This testimony shows, without the aid of that contained in the improperly admitted deposition, that the deceased knew of the dangerous condition of the place in which he was at work, that it was unsafe on Saturday night, that no crossbars br buddy had been sent him between Saturday night and the time when he resumed' his work without either, and yet he resumed his work and apparently undertook to take down the dangerous rock that caused his death. He was a man of mature age and of extended experience as a miner. He had knowledge and appreciation of his danger, and knew that under the Mining Act he was required to quit the work and vacate the place. There is but one conclusion to be drawn from this statement of facts, and that is that he assumed the risk. In this condition of the record, we are not justified in sending the case back for a new trial because of the error in the admission .of the deposition.
"I object to any dramatic exhibition of that character; this is a court of justice; it is not a playhouse, and it is imitating this man, who is an employe of the defendant.”
The court overruled the objection, and declared no one was being imitated. We take occasion to say that, if the circumstances had justified the reading of the deposition, no exception could be taken to the manner in which it was read. It was a perfectly proper way in which to read it. Indeed, it is a much more satisfactory way than to have one person read the whole, because it enables the jury easily to differentiate between question and answer.
There is no evidence in the record that the defendant fever failed to comply with the orders of the mine foreman or of his assistants; and there is no evidence that the defendant ever had notice that an “emer
Judgment affirmed.
Dissenting Opinion
I dissent upon the ground that it cannot be said, as matter of law, that the conceded error in admitting the Hajduk deposition was not prejudical to the plaintiff.
The negligence of Vagasxki and of the defendant are questions of fact, and siioukl be submitted to a jury upon competent evidence.
Whet effect the reading by the defendant of testimony taken on behalf of the plaintiff may have had upon the jury we do not know. That it influenced the jury unfavorably to the plaintiff may reasonably i>e inferred.
The plaintiff is entitled to a new trial.
