Judges： Agnew, Gordon, Mercur, Merour, Paxson, Sharswoc, Trunkby, Woodward
Filed Date： 5/6/1878
Status： Precedential
Modified Date： 10/19/2024
delivered the opinion of the court,
This suit was brought by defendant in error to recover damages for the death of his son, Alexander Jones. He was killed by an explosion of gas, in the colliery of the plaintiff in error, known as the “Exeter Shaft,” and while in the employ of the company. It is claimed that the explosion was caused by an insufficient supply of fresh air.
This mine was ventilated by the method usually practised in the coal fields of Wyoming. It is by drawing the air through an inlet called a “down-cast” into the mine, and having passed it through the mine, then up and out by what is called the “up-cast,” which is near the shaft. The movement of the air is effected by means of a “suction-fan.” It creates a vacuum, and that vacuum is filled by the natural pressure of the atmosphere, thereby creating a continuous current. A current of fresh air is thus drawn in, and thrown out, and the gas passes out with it. The fan is a wheel of about twenty feet in diameter, having paddles thereon of about six feet in width. Its effectiveness depends on the rapidity of its revolution. The quantity of fresh air necessary to be passed through the mine depends on the number of men employed therein. The 7th section of the Act of 3d March 1870, Purd. Dig. 1069, pi. 7, declares that in every mine or colliery, an adequate amount of ventilation shall be provided, “ of not less than fifty-five cubic feet per second of pure air, or thirty-three hundred feet per minute, for every fifty men at work in such mine, and as much more as circumstances may require.” The defendant in error proved by James Bryden, that the fan in use at the time of this accident, was of sufficient capacity, when driven, to thoroughly ventilate the mine, and that from thirty-five to forty revolutions a minute would secure perfect ventilation, also that at about forty revolutions a minute, the cubic contents of the ventilation, would be about sixty thousand feet per minute. At the time of the accident there were only twenty-nine or thirty men at work in the mines. Hence the ventilation at forty revolutions per minute, would be thirty times greater than the statute required. No witness testified that the fan was either defective in construction, or insufficient in capacity to properly ventilate the mine. The complaint was that the revolution of the fan was so lessened, that it did not remove the noxious gases, and the explosion therefore resulted. It appears that some days prior to the explosion, all general work in the mine had been stopped. Most of the three hundred persons or thereabouts, who had been at work, were discharged. Some thirty only were retained. They were engaged in making some improvements and repairs in the mine, which could not well be done when it was in full operation. Alexander Jones was one of these men. They were at work near the foot of the shaft, and so near the current of air as to be annoyed
Jones’s body was found in a side chamber, inside of a door shutting-off that gangway from the one in which the men were at work, and a few hundred feet from them. Whether any duty called him into that gangway does not clearly appear. The marks of burning found on his person would indicate that his lamp caused the explosion ; but the jury has found that he was not guilty of any contributory negligence. The main question now presented for our consideration is whether there was any evidence of negligence for which the plaintiff in error is liable ? It is claimed that the negligence, if any, was that of Jones’s fellow-servants, for which the company is not liable.
It is well settled in England, and in Pennsylvania, and pretty generally in this country, that a servant who is injured by the negligence or misconduct of a fellow-servant, cannot maintain an action against the master for such injury. If, however, there be fault in the selection of the other servant, or in retaining him in his place, after he has proved incompetent, or in employing unsafe machinery, the master may be liable. So, if the master has placed the entire charge of the business in the hands of an agent, exercising no authority and no superintendence of his own therein, he may be liable for the negligence of such an agent, to a subordinate employee. This rule of liability for the negligence of a general agent applies whether the master be an individual or a corporation. Owing to the fact that the business of corporations is transacted by means of agents, they would escape the just measure of liability unless this rule applied to them. In this respect, both as to liability and for protection, they stand on the same footing w'ith individuals.
The question arises who are fellow-servants in contemplation of law ? To constitute such they need not at the time be engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purposes. The rule is the same, although the one injured may be inferior in grade, and is subject to the control and direction of the superior, whose act caused the injury, provided they are both co-operating to effect the same common object. The true reason upon which, I think, this rule rests is, that each one who enters the service of another, takes on himself all the ordinary risks of the eniployment in which he engages, and that the negligent acts of his fellow-workmen, in the general course of his employment, are within the ordinary risks. Omitting numerous cases which sustain the principle
In part of'the charge covered by the fourth assignment, the learned judge said to the jury, “that Colonel Mason, Mr. Reese, Mr. Dávis and Thomas Harris were the company’s agents in this case, and for any act of negligence on their part in the line of duty assigned to them, the company is to be held responsible by you.” The question then is, did the evidence show that these persons, or either of them, sustained such relation towards the plaintiff in error as to make it liable for their misconduct ? The company had one general superintendent over all these men. He was one of the witnesses called and sworn in behalf of the defendant in error. He testified that he was superintendent of all its collieries in the neighborhood; that he had the general control of the management of all those collieries; that Col. Mason was the “ outside foreman” and Mr. Rees§ the “ inside foreman” of the Exeter Shaft; that the duties of Col. Mason "were to take charge of the coal when it came out; that he had charge of the brokers, engineers, all outside men — but was not superintendent of the inside work. It appears that Mr. Reese, called by the general superintendent “inside foreman,” was also known as the “mining boss.”. He had the entire control of the inside operations, in regard to working men employed, and the ventilation, subject to orders from the general superintendent. The 8th section of the Act of 3d of March, swy>ra, requires the employment of a mining boss, wdio shall keep a careful watch over the ventilating apparatus, and all things connected with and appertaining to the safety of the men at work in the mine. Presumably these duties were assumed by him. Harris was an assistant under him, and to a considerable extent performed the duties of a mining boss. Mr. Davis was the “ fire boss.” His duties were to go down the shaft every morning, before the men went to Avork, and to ascertain whether there was any' gas, and report to the men before they went down. Lines was the
Thus it is shown that the foreman and bosses and their assistants, including the engineer, miners and drivers, whether at work inside or outside of the mine, were all engaged in the same common Avork, and performing duties and services to effect the same general object —that purpose, and that object was, to take the coal from its natural bed, lift it to the surface and prepare it for market. It is true each had his alloted work to perform, yet, nevertheless, they were all fellow-servants or fellow-workmen, seeking to reach the one common object, and accomplish the one common purpose. Some of the employees were superior in the grade of their employment to Alex. Jones, others were inferior. Whether superior or inferior they as well as he, were all under one common superintendent. In his hands, and in his alone Avas the entire charge of the business placed by the company. His negligence might be negligence of the company. In this ease no negligence is imputed to him, either in the selection or retention of unworthy employees, nor in using unsafe machinery. It therefore follows that the learned judge erred in charging- that the company was liable for the negligence of certain of its foremen and bosses, which resulted in the death of another boss. The latter took on himself that risk, as a part of the ordinary risk of his employment, when he became engaged in the same common service with them. Under the most careful management, mining is attended with danger, and persons engaging therein must be presumed to knowingly incur the ordinary risks incident thereto. Nor do we think the liability of the company for the act of its mining boss is changed by the fact that he is appointed pursuant to a statute, Avhere it has a general superintendent over him, Avho has power to direct and control him. We discover no sound reason for any distinction. In either case the company must appoint a competent and suitable person, and provide suitable and safe machinery. He is to “carefully Avatch” and “to see” for the purpose of protecting from danger, all men at work in the mines, says the statute. This, however, does not displace nor supersede his superior, to whom he may be required to report. Howell v. Landore Simons Steel Co., supra.
The conclusion we have reached is not in conflict Avith the law of Mullan v. Philadelphia and Southern Mail Steamship Co., 28 P. F. Smith 25. The facts shoAv that to be a close case; it is very near the dividing line. Yet ave thought the evidence sufficient to go to the jury under proper instructions. As stated in the opinion of our brother Woodward, there Avas some evidence tending to
We think the learned judge erred in excluding the evidence covered by the twelfth assignment. It bore directly on the question. of Jones’s negligence in entering the gangway in which his body was found. The point submitted by the plaintiff in error should have been affirmed. The fourth, sixth, eleventh and twelfth assignments are sustained. We cannot say there is any substantial error in the .other assignments.
Judgment reversed.