Haley v. Keim

Opinion by

Mb. Chief Justice Paxson,

This is an important case, and it is for this reason perhaps that its discussion, both at bar and in the paper hooks, has taken an unnecessarily wide range. As we view the case it turns upon a single point.

By the defendant’s fifth point the learned judge below was asked to instruct the jury that if they believed from the evidence in the case, that Andrew G. White was inside foreman or mine boss at Greenback colliery at the time of the accident, and that the plaintiff’s husband lost his life through the negligence of the said Andrew G. White in not properly examining the air-ways and ventilation of the said colliery, and taking the proper precautions to prevent the escape of noxious or poisonous gases from Buck Ridge colliery, or any other source, into Greenback colliery where the plaintiff’s husband was employed, the plaintiff cannot recover because such negligence would be the negligence of a fellow servant, and within the ordinary risks taken into consideration at the time said Patrick Haley became employed as a workman at Greenback colliery. This point was affirmed.

That this ruling was correct is settled by Delaware & Hudson Canal Company v. Carrol, 89 Pa. 374; Reese v. Biddle, 112 Pa. 72, and a number of other cases, in which it was distinctly held that a mine boss is a fellow servant of the miner, and that where an operator of a coal mine has used reasonable care in the selection of a mine boss, he is not responsible to a miner for an injury to him resulting from the negligence of the mine boss.

Up to this point we find no fault with the ruling of the court below. The error into which the learned judge inadvertently fell, was in submitting to the jury the question whether Andrew G. White was inside foreman or mine boss at Greenback colliery at the time of the accident. The submission of such a question to the jury in a case of this description, whether with or without evidence, could lead only to a verdict for the-plaintiff. The law is practically so administered in Pennsylvania. It is therefore especially important to inquire whether the facts justified such submission. The plaintiff’s husband lost his life by inhaling deadly gases in what is known as the Greenback colliery on the 20th of August, 1884. Prior to that day one H. J. Toudy was the owner of this colliery and operated it. He sold it to the defendant company, which owned an adjoining colliery, called the Buck B-idge mine. The formal delivery of the mine was made on the afternoon of the day before mentioned. Early in the morning of that day, and before the formal transfer, a fire was discovered in the underground workings of the Buck Ridge mine. The gases generated by this fire found their way into the Greenback colliery by means of openings between the two collieries. It was clearly the duty of the mine boss of the Greenback colliery to have closed these openings, and thus prevent the impure air from entering it. It was the neglect of this duty which caused the accident. Of this there cannot be a shadow of doubt as the Greenback colliery was shown to be free from impure air until the fire broke out in the Buck Ridge colliery. At the time of the transfer the fact was known to the parties that the Buck Ridge colliery was on fire. There was evidence which I do not understand to be disputed that when the defendants took possession of the colliery they inquired of Mr. Toudy, the former owner, as to its condition and were told that it could be worked without regard to Buck Ridge. In other words, that it was not in any danger from gas from the Buck Ridge colliery. They could only know this from the report of others competent to judge or from personal inspection. Mr. White, the mine boss, denied that any inquiries had been made of him by the defendant in regard to the condition of the mine. Be that as it may, it does not appear that he warned defendant that the openings in question had not been closed up.

With this brief statement of the facts it remains to consider the position of Mr. White. That he was the mine boss under Mr. Toudy is not disputed. That he continued in that employment was proved by a number of reputable witnesses, whose testimony was practically un contradicted. The only conflicting evidence was that of Andrew G. White himself. This witness was called by the plaintiff and was manifestly an unfriendly witness to the defendant. Indeed, it was alleged that he had a suit pending against the defendant company. Mr. White does not deny that he was mine boss for Mr. Toudy, and, after the transfer, for the defendant company. His allegation that the latter did not pay him for his services on the 20th of August, but that his pay commenced upon the 21st, is the merest quibble. He admitted that he had been paid for the 20th by the Greenback colliery, and that his pay commenced on the 21st by the defendant company. So that in point of fact there was not a moment of time that he was not paid for his services as mine boss. And he was acting as mine boss at the very time of the accident.

Aside from this, the negligence of which he was guilty, and which was the cause of the unfortunate accident, was committed by him prior to the day of the transfer, and when there was no dispute as to his being the mine boss. It was his duty to have kept these openings closed, and it was only the rapid generation of gases by the fire in the Buck Ridge colliery, and the subsequent accident, that disclosed his negligence. It was his duty to have kept those openings closed at all times and under all circumstances to prevent just such accidents as this. Neither he nor any one else could tell at what moment foul air might come in from the Buck Ridge mine, nor from what cause. He had a map of the mines and might and ought to have known of the openings. This is a duty cast upon him by the act of assembly. The most important of all his duties is to see to the proper ventilation of the mine, and to guard against the possibility of such an accident as this. The employment of a mine boss is made compulsory upon the mine owner, and there is no allegation that White was not a competent man, much less that his employer knew that he was incompetent. We have repeatedly held, as before stated, that the owner of a mine is not responsible for the negligence of the mine boss, unless he is incompetent and the owner knows him to be so. To allow a recovery under the facts as developed would be to fritter away this rule so far as it is applicable to this case.

The fact that the defendant company sealed up its mine to smother the fire, has little importance. It was not negligence to do this, and it was not bound to know that the openings had been left open by "White. -And it is more than probable from the evidence that careful inquiries were made as to the condition of the Greenback colliery before the accident occurred.

We are of opinion that the defendant’s first point should have been affirmed without qualification.

Judgment reversed.