Voshefskey v. Hillside Coal & Iron Co.

47 N.Y.S. 386 | N.Y. App. Div. | 1897

Goodrich, P. J.:

The action was brought .to recover for injuries received, by' the plaintiff in October, 1891, at which time he was a resident of the State" of Pennsylvania. ■ The defendant is a corporation, organized imder the laws of that State, and was carrying on business as a mining company at Forest City.. The plaintiff continued'to reside in Pennsylvania until June, .1896, when he removed to Haverstraw, N. Y. The action was commenced on June 24, 1896.

The plaintiff began -work as a- doortender for the defendant in Hay, 1891; in October he was employed to drive a mule attached to loaded coal cars of the defendant, and was injured within a week after commencing that work. On the day of the accident the plaintiff, after hitching his mule to a car, stepped upon the right-hand bumper, and then, according to his testimony, was in the act of stepping over to the left-hand bumper, when a block, which formed a part of it, turned under his foot and .threw him down in front of the car, which passed over his arm and crushed it so that it had to be amputated above the elbow.

The plaintiff claims that the accident occurred by reason of the defective condition of the bumper, and there was some evidence tending to show that its condition was defective and was known to the mine foreman of the defendant.

The defendant contends that the court was without jurisdiction, as the complaint did not allege that the plaintiff was a resident of this State at the time of the commencement of the action, and the defendant is a foreign corporation.

After the plaintiff had closed his evidence, the defendant’s counsel moved to dismiss the complaint, whereupon the plaintiff’s counsel obtained leave to recall the plaintiff, and examined him as to his residence at the time of the service of the summons. The defendant’s counsel objected and excepted to this examination and to the amendment of the complaint upon the ground that the court had no jurisdiction to make such an order-or to take any other steps in the action. .

I do not think that the exception was well founded. The question of jurisdiction depended upon the fact-of the plaintiff’s residence; and, if he was a resident of the State of New York at the time of the commencement of the action, the court had actual jurisdiction, although the fact was not .alleged in the complaint, and the court was justified in permitting the amendment.

The defendant also moved to dismiss the complaint on the ground that the liability of the defendant was governed by the laws of Pennsylvania, where the parties resided at the time of the accident and under .the laws of of which the defendant operated the mine, and. employed the plaintiff.;' and that, by the laws.of that State, the neglh gence alleged was that of the mine foreman or his' assistant, the driver boss, wlio, by the laws -and decisions of that State, are co-employees.' of the plaintiff, for whose negligence the defendant is not liable.. The court refused to grant- the motion and submitted the issue to." a. jury, reserving the questions involved in the motion. The jury rendered a verdict of $5,000 for the plaintiff, which was subsequently set aside by the court, a new trial being granted, and from" this order the plaintiff appeals.

. We are thus brought to consider the question whether the liability of the defendant is governed by the laws of Pennsylvania,, the place of the contract and óf the accident, or by the law of the forum, and we are clearly 'of the opinion that" the law of Pennsylvania controls.. Story, in his Conflict of Laws (7th ed. § 29), refers to the three axioms of Huberus, which seem to solve the intricacies of the subject. “The first is, that the laws of eveiy empire have force only within the limits of its own government, and bind all who are subjects thereof, but not beyond those- limits. Thé second is, that all persons who are found within-the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof. The third is, that the rulers of every empire from comity admit that the laws of every people, in force within its own limits ought to have the same force, everywhere, so far as they do not prejudice the powers or rights of. other governments, or of their citizens.”

The same doctrine has also been held by the courts of our own State in analogous cases. (Whitford, Admr., v. Panama R. R. Co., 23 N. Y. 465; McDonald v. Mallory, 77 id. 546, 551.)

By the statute law of Pennsylvania, which was offered- in evidence,, all persons are prohibited from riding upon loaded cars in any shaft or place in or about a mine. As the plaintiff was riding upon a loaded car in a mine shaft, and the accident occurred by reason thereof, and while he was so engaged, the defendant cannot be held liable, even though the car was in an unsafe condition,- as the plaintiff, was using the car and bumper in violation-of the statute, and the defendant. cannot be held liable for failure to furnish a safe car to be used by the plaintiff in violation of the statute.

The plaintiff testifies- that he was ordered to ride upon the bumpers by the assistant mine foreman. As the statute provides that the mine foreman or his assistant shall see that no person is permitted to work in an unsafe place, the most that can be said is, that the plaintiff received his injury through the misconduct of the assistant mine foreman in directing him to ride upon the loaded car contrary to the statute; and it is settled by a long line of Pennsylvania authorities, which form part of the evidence in the record, that these persons are co-employees of the other workmen in the- mine, so far as their statutory duties are concerned, and that the owner is not liable for their negligence or misconduct.'

We have not lost sight of the objection of the plaintiff that the laws of Pennsylvania forbid the assistant mine foreman to act as such unless he holds an official certificate, and that the defendant was permitted to prove the existence of such certificate without producing it, but the record does not show that any objection was made to this method of proof and it is too late to raise the question on appeal.

The plaintiff relies upon the principle that it is the duty of the employer to provide suitable tools and machinery, and contends that defendant failed to fulfill that duty when it furnished a car the-bumpers of which were out of repair, but as it was the duty of the mine foreman or assistant mine foreman to see to the proper repairing of the car, the failure to do so must also be held to be the negligence of such persons, and we have, already held that these were fellow-servants of the plaintiff.

Another objection of the plaintiff arises from the use of the words “ slope, shaft or plane ” in the Pennsylvania statute, which reads: “ Ho persons shall ride upon or against any loaded car, cage or gunboat in any shaft, slope or plane in or about a mine or colliery.” The plaintiff contends that the place-where the accident occurred was not within the category of the prohibition. We do not agree with his criticism, as the statute ...must be reasonably construed to) carry out its intention, and its evident intention was to forbid all pei’sons riding upon loaded cars while in motion in a mine.

Hor is there any force in the contention of the plaintiff that it was customary for himself and the other drivers to ride upon loaded cars, and that this custom was sanctioned and approved by the defendant’s officers, even assuming the truth of his testimony upon this point, that he was ordered by them to ride upon the car. Such order was a. direct violation of the statute and- a reliance upon it cannot avail the plaintiff.

The learned court was justified in setting aside the verdict; and the order is affirmed- ' -

All concurred.

Order granting new trial affirmed with costs.