Lineoski v. Susquehanna Coal Co.

Opinion by

Mr. Justice Green,

In this case there was considerable testimony showing that m certain portions of the mine, not remotely distant from the 'point at which the accident occurred, there was leakage of water, some of which was muddy, from the sides and roof of the mine, that there were cracks in the roof and that there was some cracking and crushing of the timbers of the mine. There was also testimony that the attention of the mining boss was called to these matters and that he promised to attend to them and put in more timbers. It was proved that some of these defects had existed for several months, but the men had continued their work as usual. There was no proof locating the exact place in the mine at which the water and sand broke through and caused the great destruction of life that ensued, nor, of course, was there any testimony as to the condition of the mine at that place. Nor was there any proof as to how the accident happened or what was the actual cause of the breach and flooding of the mine. But it was claimed that the defendant was negligent in not providing a safe place for their workmen to work in, and the proof of notice to the mining boss was relied upon to charge the company with notice of the defective condition of the mine, and consequent liability for the damages sustained by the plaintiffs. The learned court below was of opinion that the notice to the mining boss was insufficient to charge the defendant with liability to the plaintiffs, because he was only a fellow workman with the deceased miner, and therefore the defendant was not liable for his negligence, and that there was no sufficient evidence of negligence in other respects to charge the defendant with liability therefor. Having closely read the whole of the testimony and the able arguments of counsel for the appellant, we are constrained to say that in our opinion the case was correctly disposed of by the learned court below.

The fatal element in the plaintiffs’ case, as it seems to us, is, that if there was negligence in not keeping the mine in a safe condition for the men to work in, it was the negligence of the mining boss who was a fellow workman with the deceased miner, and therefore not imputable to the defendant. It is true that, as to some of the defects, it was shown they had existed for several months, and it is contended that for that reason the case does not come within our decisions on that subject, but it is replied to this contention that the mine did not give way at those points but remained standing after the flood as it was before, and also that whether the time was long or short it did not affect the application of the doctrine of non-liability for the negligence of a fellow servant.

We do not find in the record any evidence of notice to the company except the notice to the mining boss, and there was no proof that any members of the company had ever seen or visited the places where the defects in question existed. It was also the fact that the men continued to work in the mines after the notice the same as before, from which it is argued that the men did not regard them as serious. It was also fully proved that in all anthracite coal mines there is a constant leakage of water into the mines. An examination of the authorities shows that whether the negligence of the fellow .workman continues for a long or short time, the application of the rule of non-liability is not affected. In fact there is just as much, perhaps more reason, for enforcing it where the time elapsed after notice is longer than where it is shorter. For if the defects warned against are serious and the mining boss does not correct them, it is the clear, indeed the urgent duty of the workman having knowledge to notify the principal, and if he does not do this, under all the authorities, he continues his work at his own risk. It is to be remarked also that this company employed a mine foreman such as they were required by law to employ, and that there was no testimony in the case impugning in the least degree his fitness or his qualifications for the position. In the case of Waddell v. Simoson, 112 Pa. 567, the plaintiff’s son was killed by the fall of a slip or fault from the roof of the gangway at the edge of a breast. The negligence complained of was that the gangway, taken in connection with the width of the breasts opening'out from it on both sides, was too wide to be safe without artificial supports or proppings. It was claimed that the defendants were bound to keep a safe place for their workmen to work in and had not done so, because they had not supported the roof of the mine at the place in question with suitable props and timbers. The court below sent the case to the jury notwithstanding the requests for charge of the defendants, and the jury rendered a verdict for the plaintiff. This court reversed the judgment without a venire. Our brother Gordon, delivering the opinion, said: “ In the case of the Lehigh Valley Coal Company v. Jones, 5 Norr. 432, as also in the Delaware & Hudson Canal Company v. Carroll, 8 Id. 374, it was held by this court that the mining boss is a co-employee with the other workmen engaged in a coal mine, and that, as a consequence, the owners of the mines are not responsible for damages to a fellow workman from his negligence. . . . The competency of the defendant’s mining boss does not seem to have been questioned; but it is alleged that he was negligent in not having the roof of the gangway properly secured by props or other appliances which might have prevented the fall of- the rock that killed the plaintiff’s son. But that the employer cannot be made responsible for damages resulting to a servant from the negligence of a fellow servant, is a principle as old as the common law. Moreover, as the defendants had complied strictly with the 8th sec-tion of the act of March 3, 1870, in providing a practical and skillful inside overseer or mining boss, and as they had thus fulfilled the duty imposed upon them by the general assembly, it is not for this or any other court to charge them with an additional obligation. . . . Bosses, however well intentioned and skillful, cannot always be on the watch ; occasionally they will fail in judgment, and at times may even be negligent; but of this the workman is quite as well aware as his employer, and in entering upon the employment of mining he must assume the risks that are ordinarily incident thereto, among which are those accidents that may result from the negligence of co-employees, of whom, as we have seen, the mining boss is one.”

As the negligence complained of in the foregoing case was the omission to prop the roof with suitable timbers, it was a continuing omission from the time the mine was opened at the point where the fall occurred, but that circumstance did not affect the decision of the case, nor change in the least the application of the rule which relieved the defendant of liability on account of the negligence being that of a fellow workman.

In Redstone Coke Company v. Roby, 115 Pa. 364, the action was brought to recover damages for personal injuries caused by an explosion of gas; the plaintiff was a miner who worked in the coal mine of the defendant, and the negligence alleged was in not furnishing proper ventilation for the mine, and we held that, if the defendant’s responsibility was to be measured “ by the results, we would have little difficulty in arriving at such a conclusion.” But the defence was grounded upon the proposition that the defendant had employed a mining boss as required by the act of 1877, and had thereby fulfilled the measure of their obligation, and as he was a fellow servant of the injured miner, defendant was not liable. Mr. Justice Paxson, delivering the opinion, said: “ It has been held in a number of recent cases that the mine owners are not responsible for the negligence of their mining boss : Reese v. Biddle, 112 Pa. 72 ; Waddel v. Simoson, Id. 567. Ileasonable care must be exercised iii selecting a competent person for such a position, but when such care has been exercised the eases are clear that the company employing him is not liable for his negligence. This results necessarily from the act of April 28, 1877, P. L. 58, which imposes upon the company the duty of providing a mining boss. . . . The mining boss is therefore a creature of the legislature, selected by the mine owner in obedience to the command of the law, and in the interest and for the protection of the miners themselves. It has therefore been properly held that where the mine owners have exercised reasonable care in the selection of a competent mining boss, they are not liable for injuries resulting from his negligence. His co-employees take the risk of his negligence precisely as in other cases. If lie is incompetent or careless they can at once discover it and notify the superintendent, while the owners, with every wish to protect the miners, have no such opportunities of information. It is very plain, as was held in Waddell v. Simoson, supra, that the operator of a coal mine fulfills the measure of his duty to his employees if he commits his work to careful and skillful bosses and superintendents, wlio conduct the same to the best of their skill and ability. More than this be cannot do, and with such duty performed, whatever of risk or danger remains must rest upon the miners themselves.”

These remarks are as precisely applicable to tbe act of 1885, as they were to the acts of 1870 and of 1877. The fundamental idea as to all of them is that properly qualified persons, as designated in the several acts, shall be employed by mine owners with prescribed duties relative to the care and inspection of mines, and where this is done the mine owner has discharged his duty in this regard, and, if, having done so, accidents occur which can be traced to the carelessness or negligence of these persons, the owners are not liable.

There is no force in the contention that because, under rule 24 of the 12th article of the act of 1885, the miner must give notice of any apprehended danger to the mine foreman, therefore he is to be considered as the representative of the owner for all purposes, so as to charge the company with liability. No such provision is found in the act, and the duty to give such information was just as great before the act as after. The act simply embodied what was already a legal duty of the miner into the provisions of the statute, making it more precise and emphatic and bringing the performance of such duty more directly to the attention of the miner. The position of the mining foreman with relation 'to the owner was not changed by this provision. His duty was the same, with or without this provision, to wit, to give immediate attention to the apprehended danger, and take all proper measures to prevent its occurrence. The effect of his negligence in not correcting the defects or dangers complained of, would be precisely the same after as before the statute, and it would require a specific change of the law by statutory enactment, to impose liability upon the owner for his negligence when there was no such liability at the date of the passage of the act.

Nor is there any force in the contention that, several months before the accident, T. M. Williams was in the mine upon one occasion in company with Corrigan, the mine foreman, and made a remark that the roof was bad and some more timbers must be put in. Williams was not in any position in regard to the mine at the time of the accident nor for some months— two or more — before the accident. There is no proof that any notice was given to him of any defective condition of the roof or mine at the time spoken of. He merely made a remark to Corrigan that the roof was bad and that some more timbers should be put in. It was not at the place of the accident and it does not appear whether more timbers were put in or not. But when he did hold a position in the mine it was only as inside foreman, according to the testimony. G. T. Morgan was superintendent of the mine at that time. At the time of the accident Reese was inside foreman and Corrigan was the mine foreman. No notice was given to Reese as to the condition of the mine. But, as inside foreman, even if Williams had received notice and had remained in that position until the accident, he was in the same position as the inside foreman in the case of Lehigh Valley Coal Company v. Jones, 86 Pa. 432. In that case the inside foreman “ had the entire control of the inside operations in regard to the working men employed, and the ventilation, subject to orders from the general superintendent,” yet we held that the company that employed him was not liable for his negligence.

It seems to us that the authorities already quoted embrace all the features of this case, and that they prevent any recovery. Some claim was made that the piling of the culm on the outside surface of the ground was proof of negligence such as would hold the defendant company liable. But there are several difficulties in the way of this theory. In the first place there is no proof that it was piled any differently from the usual method followed in the coal region. The accumulations of coal dirt are a necessary result of the mining operations. They must be deposited somewhere on the surface and as a matter of fact they always are. We discover no evidence of any departure from the usual methods observed in such cases. There was, in times of storm, a small stream that ran through the depression or gully over which the culm was piled, but it is not proved, and in fact is not credible, that when there was any water there it would penetrate into the solid ground and through a considerable depth of rock, rather than through the pile of loose culm lying on the surface. Again there is no proof that the culm pile was in any way the cause of the breach into the mine at the point far below the surface where the flood of water and sand broke through. It would be altogether unsafe to intrust such a question to a jury to be disposed of by mere conjecture without proof. If there were some kind of definite proof in the cause that would authorize a legitimate inference to this effect, there would be force in the contention that it should be sent to the jury. But we can discover nothing but a basis of mere surmise or conjecture in the testimony on this subject. The culm had been in place for years without producing any such result or any suspicion of such result. Its weight did not cause any falling in of the roof of the mine below it; there is no proof as to what was the condition of the mine at the place where the breach took place, and nothing but an inference that because the culm pile was on the surface and the breach was at some point far down under rock and earth, could justify a verdict. But verdicts as to such matters must be founded on something much more substantial than mere inferences. There must be actual testimony tracing a connection as between cause and effect, in the case, before inferences of that nature can be permitted. All coal mines have water in them and timbers must be used to support the mines which sometimes crush, but the fact that the mine was still intact at those points after the flood, discredits entirely the theory that those conditions were the cause of the breach. We think the learned court below treated the case correctíy in entering a judgment of nonsuit.

But in any event, supposing that the conditions in the mine below, resulting from the presence of water and the crushing of timbers, were indications of danger from the culm pile, the workmen had far better opportunities of knowing it than the owners, yet they gave no notice to the owners. They called the attention of the mine foreman to it, but neither he nor the men regarded it as of any material consequence, as they all continued their work in the mine. If the foreman neglected to inform the owners and the accident resulted from that neglect, the owners are not responsible.

We have examined and considered carefully the several assignments of error as to the rejection and admission of testimony, and think they are without merit.

The witness Gallagher who was offered as an expert had never been in this mine nor done any work in it or about it. He had heard a considerable part of the testimony of the witnesses, but not all; he had done some work in other mines, was a school teacher and occasionally lectured on mines and mining and gave instruction to persons desiring to become mine bosses; his knowledge of coal veins, and of overlying and underlying strata, was entirely theoretical. A very long hypothetical question was put to him, at the end of which he was asked to state what in his judgment was the cause of the breaking in of the roof at the point where the accident happened. He was asked by the court whether he had ever examined this property at this place, and he said “ No.”

“ Q. Did you ever work in this mine ? A. In the mines of this county, no, sir.”

He was also asked whether he had ever examined the culm pile, and he said, No, he only knew what the witnesses said about it. The question was objected to on the ground, among others, that he had not exhibited any such qualifications as would entitle him to answer the question as an expert. The question was rejected as we think with entire propriety. The breaking in of tbe water and sand was of course due to the presence, at the point of the breach, of a great body of water and sand, and an insufficient thickness of rock at that point to restrain it. But how the water and sand got there and why the rock was not thick enough to restrain were matters which the witness could not know, more that any indifferent person. Neither could he tell as a fact whether the roof was broken in at all, and there was no testimony to prove that fact in the case. If such was the fact it was not to be established by the mere opinion of anybody. If there were facts in evidence tending to show that fact, it was for the jury to know of them and to judge of them. In the case of Fire Insurance Co. v. Gruver, 100 Pa. 266, we said, Gordon, J.: “ The opinion of a witness who neither knows nor can know more about the subject-matter than the jury, and who must draw his deductions from facts already in the possession of the jury, is not admissible : Hartman v. Insurance Co., 9 Harr. 466. Were it otherwise the opinions of the jurors upon the most obvious facts might be always shaped for them by the testimony of so-called experts, and thus would a case be constantly liable to be determined, not by the opinions and judgment of the jury, but by the opinion and judgment of witnesses.”

The next question propounded to the same witness covered by the eighth assignment, required his opinion upon a condition of things with which he had shown no familiarity or even acquaintance, and the court was certainly right in rejecting the question. The same remark applies to the testimony rejected under the second assignment, the fourth, and the ninth. The question of prudence in the ninth was the very question which the jury would have to decide, and they could only decide that from fapts and not from opinions. The court was entirely right in saying, “ the testimony of an expert is not admissible to establish A fact dedueible from evidence, which the jury is just as competent to decide as the witness.” The question put to Winters in the fifth assignment, “ What brought down the roof here in this mine where the accident happened, if you know ? ” was also properly rejected. The witness was working in the third chamber, which was at quite a distance from the fifth, at the end of which the cave-in was supposed to have occurred. He spoke of seeing cracks in the roof of the mine where he was working and water flowing there, and that he had told Corrigan of it, and that the roof would come down, but he also said he went in after the accident to the same place and found it all standing. He did not say he had ever been at the place where the breach occurred, and of course did not know what brought the roof down there, or that the roof was brought down at all, or what was the manner in which the breach occurred. Certainly he was not competent to testify either as a miner or an expert in answer to the rejected question. The other assignments are without merit and have already been sufficiently considered as to their substance.

Judgment affirmed.