Reeder v. Lehigh Valley Coal Co. , 231 Pa. 563 ( 1911 )

Opinion by

Mr Justice Elkin,

The negligence relied on to sustain a recovery in the present case is óf a threefold character; first, failure to provide a safe and sufficient passageway for the men in going to and from their work; second, failure to properly guard the trolley wire which it is alleged was a statutory duty from which nothing but performance would relieve appellant; and third, that the trolley wire was insufficiently inspected and negligently maintained, and was not under supervision of the mine foreman but was: in charge of an electrician employed by the superintendent. The learned trial judge instructed the jury that it was the duty of appellant to guard the trolley wire by an inverted trough, or in some other safe way, in order to protect the men from inadvertently coming in contact with it as they passed through the tunnel. This instruction was based on the theory that a statutory duty to guard the trolley wire was imposed upon appellant by article V, sec. 5, of the Act of June 2, 1891, P. L. 176. This section provides that: “All machinery used in or about the mines and collieries, and especially in breakers, such as engines, rollers, wheels, screens, shafting and belting, shall be protected by covering or railing so as to prevent persons from inadvertently walking against or falling upon the same.” Trolley wires are not included in the enumeration of the kinds of dangerous machinery and appliances to be protected by a covering or railing. The learned trial judge suggested as a reason for not including trolley wires in the enumeration of the dangerous kinds of machinery named in the act, that the use of electricity had not been introduced in the operation of mines at the time of its passage. It is doubtful whether this statement is in accordance with the facts relating to the use of electricity in mining operations. It may not have been in general use, but it was in use for some purposes in many mines, and in some mines an electric haulage system had been installed prior to the passage of the act. However, the point at issue does not depend upon the history of the introduction and use of electricity in mining operations. When failure to perform a statutory duty is set up as the basis of a claim for damages, the burden is on the party so claiming to point to the statute which expressly imposes the duty. When statutory duties are imposed we must look to the statute to ascertain what the duties are. Such duties are presumed to be different in kind and degree from those imposed by the common law, else there would be no necessity for the legislation. Statutory duties do not arise by implication but must be imposed by express legislative authority. When the legislature takes a step in advance of the common law and imposes additional burdens upon an employer in order to meet the necessities of modern industrial growth, the new duties thus imposed should be so clearly set forth as to leave no doubt as to the legislative intention. There should be no such thing as a doubtful statutory duty. The section of the act of 1891 relied on in the present case requires all dangerous machinery used in or about mines, such as engines, rollers, wheels, screens, shafting and belting to be protected by a covering or railing. There is nothing in the language used to indicate an intention to include a trolley wire in the designated kinds of dangerous machinery. This may have been an oversight, or it may be that dangers of this character were not anticipated, but in either event the result is the same, because the act is entirely silent on the subject of guarding trolley wires. Again, it must not be overlooked that a trolley wire cannot be insulated or covered without interfering with the function it performs in transmitting the electric current. Under these circumstances it is not for the courts to say there was a statutory duty in this respect when the statute did not so provide. We, therefore, hold that there was no statutory duty requiring appellant to guard the trolley wire by placing an inverted trough over it. Notwithstanding what has been said about there being no statutory duty, it does not follow that no duty rested upon appellant in the installation and maintenance of an electric haulage system. The test of liability in the present case is not failure to perform a statutory duty, but whether appellant failed to provide an electric haulage system of the usual and ordinary character used in mining operations. The employer is not bound to provide the safest machinery or the newest and most approved appliances. He has performed his duty in this respect when he provides appliances such as are in general use in the business, trade, or industry in which he is engaged: Kehler v. Schwenk, 144 Pa. 348; Keenan v. Waters & Son, 181 Pa. 247. It is always important to keep in mind in this class of cases that the test of liability is not danger but negligence, and negligence is never imputed from the employment of methods or machinery in general use in the business: Reese v. Hershey, 163 Pa. 253. As we understand the facts of the present case, it is not contended that the electric haulage system was defective in construction, or that it was different from other systems in general use in the operation of mines, but it is asserted that it was not carefully inspected or properly maintained. There is some evidence tending to show that the trolley wire had been allowed to sag between the brackets, or perhaps had pulled loose from its fastenings at the brackets, until it hung within a few inches of the top of the loaded cars.. As a result of this sagging it is contended that the situation became dangerous to the men in lifting their kegs of powder as they attempted to cross between the cars from the west to the east side of the tunnel. It may very well be argued that if the trolley wire had been maintained in its proper position the accident would not have occurred because in that event there would have been sufficient space between the top of the loaded cars and the suspended trolley wire in which the kegs of powder could be safely carried over. In this connection it is important to keep in mind the exact situation as bearing on the duties of the employer on one side and the rights of the employees on the other. Appellant was not bound to furnish a different kind of trolley wire or to place it in a different position in the mine. If it appeared as a fact that the trolley wire had been properly installed and had remained in its original position, no negligence could be imputed to the mining company because one of its employees inadvertently or otherwise, placed the keg of powder in contact with it. The mere happening of the accident did not prove negligence. There can be no recovery in this case unless the sagging of the trolley wire was the proximate cause of the injuries which resulted from the explosion.

There is another branch of the case that must be considered in this connection. It is alleged that the mining company did not provide such a passageway for the men to pass through the tunnel as the act of 1891 requires. Rule 43 of this act provides as follows: “Every passageway used by persons in any mines and also used for the transportation of coal or other material, shall be made of sufficient width to permit persons to pass moving cars with safety, but if found impracticable to make any passageway of sufficient width, then holes of ampler dimensions, and not more than one hundred and fifty (150) feet apart, shall be made on one side of said passageway. The said passageway and safety holes shall be kept free from obstructions and shall be well drained. ...” The passageway on the low or east side of the tunnel answered the requirements of the act as to space and width, but it is contended that it was rendered unfit for use by the miners because it was used as a drainage channel for the mine and several inches of water constantly flowed through it. If it were not for the water running through this passageway we would be compelled to say it was ample to meet the requirements of the statute, and that the employees wére bound to use it, or take their chances in entering the mine by a more dangerous way. We cannot believe, however, that the legislature intended the miners to wade through several inches of water in going to their work through a tunnel in which a safe passageway must be provided. Under these circumstances appellee and his fellow workmen were justified in making use of the less desirable and more obstructed passageway on the west side of the tunnel. Appellant could have avoided the water difficulty by paving over the drainage channel and thus have provided a safe passageway for its men as well as drainage for its mine. It did not do so and it is not therefore in position to set up as a defense in this suit that it had provided a safe passageway on the east side of the tunnel and that the men were guilty of contributory negligence in choosing a more dangerous entrance to the mine.

The passageway on the west side was ample except as obstructed for forty or fifty feet near the point where the accident occurred. As before stated, we think the men were justified under the circumstances'in making use of this passageway. When they found themselves in a position where they could go no farther on account of the loaded trip of cars narrowing the space to pass through, it became necessary for them to return to a place of safety. Whether they were guilty of contributory negligence in what was subsequently done in an attempt to find a safe place was a question for the jury.

It is suggested in the argument for appellant that - the trial judge in effect charged the jury that the mining company did not have the right to combine a transportation way for coal with a passageway for men on account of the dangers that might result by using the passageway for men and coal cars at the same time. Such an instruction would be clear error. Rule 43 contemplates the use of one passageway for both purposes. It expressly provides that the passageway "shall be made of sufficient width to permit persons to pass moving cars with safety.” If separate passageways were required there would be no necessity for all the safeguards to men required by this statutory rule. The requirements of the rule are based upon the use of a common passageway for the transportation of coal as well as for the men.

Again, it is argued with much force, that if there was any negligence in the case at bar, it was the negligence of the mine foreman, or of the miner who caused the explosion in attempting to carry his keg of powder over a car of coal, and as both were fellow servants of appellee, there can be no recovery of damages for the injuries sustained. If the facts upon which this position is based be conceded, it would be a correct statement of the rule of law. The accident occurred on September 16, 1905, and the right to recover depends upon the law as it stood at that time. There can be no recovery if the injuries for which damages are claimed resulted from the negligent act or acts of a fellow servant: Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Redstone Coke Company v. Roby, 115 Pa. 364; Hall v. Simpson, 203 Pa. 146. James Smith, the miner who carried the keg of powder alleged to have caused the explosion, was a fellow servant of appellee, and, if his negligence caused the injuries, the right of action is barred. Was he so clearly guilty of contributory negligence as to require the court to so declare as a matter of law, or was this a question of fact for the jury? This is the real question on this branch of the case, and whether it was for the court or for the jury depends upon the facts proven at the trial. An employee is presumed to know and appreciate the obvious, and his duty requires him to exercise his senses so as to avoid open and apparent dangers: Kuhns v. Frick Coke Co., 216 Pa. 385; Vant v. Roelfs, 217 Pa. 535; Myers v. Edison Electric Illuminating Co., 225 Pa. 387. There is no difficulty about the rule announced in these and other cases of a similar character. When the rule is applicable it must clearly appear from the evidence that the danger was so open and obvious as to require an employee in the proper exercise of his senses to see and avoid it. ‘When it is so open and obvious it is the duty of the courts to so declare. After a careful review of the testimony in the present case we are in some doubt as to the proper application of the rule. In other words, it is not entirely clear that the danger from the sagging trolley wire was so open and obvious as to warrant the court in saying as a matter of law that James Smith should have seen and avoided it. We agree that he and all other employees were bound to know of the installation of the electric haulage system and of the location of the trolley wire over the west side of the track and above the coal cars. But this very knowledge may have misled them because if the wire had been in its proper place there might have been sufficient space to carry the keg of powder safely over. We think it would do violence to the rule for the court to hold that James Smith was bound to know that the trolley wire broke loose from its fastenings and hung several inches lower than it usually did. The situation has something to do with the question. The accident occurred in a tunnel in a coal mine. The space was narrow and limited. The tracks were occupied by a trip of coal cars at the point where the explosion occurred. The employees were apprehensive for fear the trip of cars might move before they could reach a place of safety. Under these circumstances it was for the jury to say whether due care had been exercised by the fellow employees under the circumsta.nces. We therefore hold that as to James Smith and his fellow miners the question of- contributory negligence was for the jury.

But it is argued it was the duty of the mine foreman to see that the trolley wire was maintained in good repair, and if there was any negligence in this respect it was the negligence of the mine foreman for which appellant is not liable. 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, to Golden v. Mount Jessup Coal Co., 225 Pa. 164, this rule has remained unbroken. It may therefore be said to be settled law. It is contended for appellee that the appellant company cannot claim the protection of this rule in the present case because the electric haulage system was not under the supervision of the mine foreman and that it was installed, maintained and kept in repair by the company itself which employed through its superintendent an electrical engineer for this purpose. We see no reason why the electric haulage system like all other underground workings should not be under the supervision of the mine foreman. Rule 1, of article 12, of the act of 1891, provides that the mine owner, '' shall place underground workings thereof, and all that is related to the same, under the charge and daily supervision of a competent person, who shall be called 'mine foreman.’ ” Rule 2 provides for the employment of a sufficient number of competent assistants when the mine foreman cannot personally attend to all of his duties. These assistants when so employed are under the control and subject to the orders of the mine foreman. Rule 13 makes it the duty of the mine foreman, or his assistants when so employed, to examine at least once every day all slopes, shafts, main roads, traveling ways, signal apparatus, pulleys and timbering and see that they are in safe and efficient working condition. Clearly, therefore, the framers of the statute had in contemplation that all of the underground workings should be in charge of the mine foreman, and the wisdom of so providing is not open to doubt. In dangerous work of this character it is a wise precaution to have a competent mine foreman duly certified by the commonwealth with certain statutory duties to perform as a protection to the health and safety of the men thus employed as well as to the property of the mine owner. But the owner can claim the protection of the law only so far as he complies with its provisions. If the mine owner elect to take certain parts of the machinery and appliances out of the charge of the mine foreman and exercise direct supervision through the superintendent over the same, the law will not give him the protection he would otherwise be entitled to if all of the underground workings had been committed to the care and supervision of a properly certified mine foreman. In other words, the mine owner is only relieved from responsibility for the acts of the mine foreman in connection with the underground workings committed to his care. If all of the underground workings are committed to the care of the mine foreman as the law clearly contemplates they should be, it then becomes the duty of the mine foreman to see that all of the safeguards required to protect the men are provided, and negligence in the performance of these statutory duties by the mine foreman cannot be imputed to the owner. We think it would be safer and wiser for all parties concerned if all the underground workings should be committed to the care and supervision of the mine foreman and then there would be no division of authority. When, however, this is not done, and accidents occur, courts must accept the facts as presented and apply the law accordingly. The exception to the general rule is pointed out in Wolcutt v. Erie Coal & Coke Company, 226 Pa. 204. There is testimony in the case at bar tending to show that the electric haulage system, including the trolley wire alleged to have caused the explosion, was not committed to the care of the mine foreman, but was in charge of an electrical engineer acting under the direction of the mine superintendent. If this be the fact, appellant is not in position to claim protection on the ground that it was the duty of the mine foreman to see that the trolley wire was properly maintained. At least under these circumstances it was for the jury to say whether the trolley wire was in charge of the mine foreman, or of the electrical engineer acting under the authority of the superintendent and not subject to the orders of the mine foreman. We find it impossible to discuss every question raised, but have indicated our general views as to the issues involved as a guide to all concerned when the case is again tried.

The first, second, third, fourth and fifth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.