226 Pa. 204 | Pa. | 1910
Opinion by
This is an action of trespass brought by the plaintiff to recover damages for injuries which he sustained on September 21, 1904, while employed in the defendant’s coal mine in Butler county. The defendant company is the owner and operates a coal mine in that county employing from 120 to 125 men. The plaintiff was employed as a trip rider, and when riding into the mine in the main entry a portion of the roof of the mine fell on him, breaking his leg. The plaintiff alleges that the defendant was negligent in not removing the loose
The defendant sets up as a defense that it had employed a mine foreman in the mine as required by the Act of May 15, 1893, P. L. 52; that it was the duty of the mine foreman under the act to keep the roof of the entry in safe condition; that the mine foreman was a fellow servant of the plaintiff and if there was negligence resulting in injury to the plaintiff, it was the negligence of a fellow servant for which the defendant was not responsible. It appears from the evidence that prior to May 1, 1904, the defendant had in its employ a mine foreman and a superintendent, and on or about that date the superintendent left the service of the company. The defendant alleges that in April, 1904, one George Mitchell was appointed by the board of directors as mine foreman and was so employed from the date of his appointment until the time the plaintiff was injured in September, 1904. The defendant’s superintendent remained in the employ of the company until June 11, 1904, when he left, and thereafter it is alleged that Mitchell, the mine foreman, performed the duties of superintendent in addition to those of mine foreman. On the trial of the case the plaintiff offered testimony to show that Mitchell was the superintendent of the mine and performed the duties incident to the position; while the defendant company contended and produced testimony tending to show that Mitchell was a duly certified mine foreman and was employed as such in its mine at the time the plaintiff received his injuries. The learned trial judge charged the jury that if they found that Mitchell was employed as mine foreman alone there could be no recovery, as the law imposed upon the mine foreman the responsibility for negligence in providing for the safety of the miners; but that if they found that Mitchell was employed in the dual capacity of superintendent and mine foreman they were to determine whether the negligence which resulted in the injuries to the plaintiff was that of Mitchell as mine foreman or as superin
The Act of May 15, 1893, P. L. 52, is entitled, “An act relating to bituminous coal mines, and providing for the lives, health, safety and welfare of persons employed therein.” It is very comprehensive and is intended, so far as legislation can do so, to protect the men who are employed in the bituminous coal mines of the state. For this purpose, it imposes specific duties upon the owner and upon certain employees engaged in the mining operations. The paramount purpose is to protect the miner while he is engaged in the mines, and to that end provides in detail the duties to be performed by the employees and those engaged in the mine who have control of its operations. To carry out the purpose of the act, art. 6, sec. 1, requires the operator or superintendent to employ “ a competent and practical inside overseer .... to be called mine foreman,” who “shall devote the whole of his time to his duties at the mine when in operation,” and defines his duties, some of which are to keep a careful watch over the ventilating apparatus, the airways, and traveling ways, to remove dangerous coal, overhead slate and rock on the traveling and hauling ways, and to see that sufficient props, caps and timbers are sent to the mine as required. Section 8 of the article requires a record book to be kept at all mines which is to be provided at the expense of the commonwealth and in which the mine foreman is required to enter a report of the condition of the mine, signed by himself, “which shall clearly state any danger that may have come under his observation during the day, and shall also state whether he has a proper supply of material on hand for the safe working of the mine, and whether all requirements of the law are strictly complied with.” There are other duties which he is required to perform by the act but which are immaterial in this case except to show generally the duties required to be performed by him.
Article 22, sec. 1, of the act, declares that the term “superintendent” means the person who shall have, on behalf of the operator, immediate supervision of one or more mines. Section 1 of art. 7 prohibits the superintendent from obstructing the mine foreman or other officials in the fulfillment of any of their duties required by the act. The same section requires the superintendent, on behalf and at the expense of the operator, to keep on hand in the mine at all times a supply of materials and supplies required to preserve the health and safety of the employees as ordered by the mine foreman and required by the act; he is also required at least once a week to examine and countersign all reports entered in the mine record book “and if he finds that the law is violated in any particular, he shall order the mine foreman to comply with its provisions forthwith.” Some other duties as to the internal workings of the mine are imposed upon the superintendent, his general duties, however, being to supervise the mine on behalf of the operator or owner.
By this reference to the statute, it will be observed that the legislature has attempted to protect the health and safety of the miners, in so far as it can be done, by defining the duties of the parties engaged in operating the mine. These duties are obligatory, and a neglect or refusal to perform them is made a misdemeanor by art. 21 of the act punishable by fine or imprisonment, and a right of action against the owner or operator is given to any party who is injured by a failure to comply with the provisions of the act by the owner, operator or superintendent.
The mine foreman is required to be “a competent and practical inside overseer,” and his duties, as defined by the act, are to be performed on the inside, and not on the outside of the mine. The internal workings of the mine are in his control and subject to his direction and management. His duty, in a word, is to see that the interior of the mine is kept in a proper and safe condition so as not to endanger the health, safety or
But the jury has found that Mitchell was, at the time the plaintiff was injured, acting as superintendent as well as mine foreman. The defendant contends, however, that conceding he was acting in such dual capacity, it was Ms duty as mine
The act does not relieve the owner from liability for an unsafe mine except when he complies strictly with it, and then it does not relieve him if he has knowledge through his superintendent that the mine foreman is incompetent and that the mine is unsafe. The statute provides the remedy, and it is incumbent upon the owner when, through his superintendent, he finds the existence of unsafe conditions in the mine to proceed to have these conditions removed in the manner pointed out in the statute. If the roof in the haulage way was defective and Mitchell had knowledge of it, as the evidence justified the jury in finding, the superintendent, representing the owner, had knowledge of the defect and of the neglect of the foreman to remove it. If Mitchell as mine foreman neglected his duty in removing the defect, it is clear that if another party had been superintendent and had had this knowledge, it would have been his duty to have taken immediate steps to remove it and thereby protect the employees in the mine. Mitchell, acting in a dual capacity, his knowledge of the defect in the roof of the haulage way was not only as mine foreman but as superintendent, and in the latter capacity, the defendant is liable for his failure to remedy the defect which caused the injury to the plaintiff.
The conclusion we have reached places no hardship upon the owners of mines. The act protects them by imposing duties upon the mine foreman whom we hold to be a fellow servant with the other laborers in the mine, and for whose negligence the owner is not responsible. If instead of placing the internal operations of the mine under the supervision and control of an employee whose duties are prescribed by statute
The judgment is affirmed.