Reese v. Biddle , 18 W.N.C. 108 ( 1886 )

Mr. Justice Paxson

delivered the opinion of the court, March 15th, 1886.

It was plain error to instruct the jury that the defendants below were responsible for the negligence of their mine boss. There was no evidence that he was not competent to perform his duties, and hence no negligence can be imputed to defendants for employing him. It has been repeatedly lield that a mining boss is such a fellow servant as in case of an injury to other emplees through his negligence the master is-not responsible. It is sufficient to refer to Lehigh Yalley Coal Company v. Jones, 86 Penn. St. Rep., 432; Delaware & Hudson Canal Co. v. Carroll, 89 Id., 374; Keystone Bridge Co. v. Newbury, 96 Id., 246. It is to be presumed tbe attention of the court below was not called to these cases, as ours certainly has not been. As the case stands, it is our plain duty to reverse upon the second, third and fourth assignments.

We might stop here. A careful examination of the testimony compels us to reverse also upon the fifth and sixth assignments, which respectively called upon the court for a binding instruction in favor of the defendants. This instruction should have been given. There was no proof — not even a scintilla — of the negligence of any one but the plaintiff himself. He was injured by the falling of a portion of the roof of the- mine; the falling could have been prevented by a single prop. It was the duty of the plaintiff to have put that prop there, and there were plenty of props conveniently at hand at the mouth of the mine to have used. None of these facts is disputed. They were proved by bis own witnesses, and they show that he has no case.

Judgment reversed.