Barnes & Tucker Coal Co. v. Vozar

• Decision Date: 08 November 1915
• Docket Number: 1976.
• Citation: 227 F. 25
• Parties: BARNES & TUCKER COAL CO. v. VOZAR.
• Court: U.S. Court of Appeals — Third Circuit

227 F. 25

BARNES & TUCKER COAL CO. v. VOZAR.

No. 1976.

United States Court of Appeals, Third Circuit.

November 8, 1915

Robbin B. Wolf, of Pittsburgh, Pa., and William F. Dill, of Barnesboro, Pa., for plaintiff in error.

Geo. C Bradshaw and Thomson & Bradshaw, all of Pittsburgh, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

McPHERSON Circuit Judge.

At the close of the judge's charge to the jury, counsel for the defendant company asked for, and was allowed, 'a general exception to the charge, and also * * * to the answers to such of defendant's points as were not unqualifiedly affirmed. ' The trial ended on February 20, 1915, but no exceptions to the charge were specified until May 29, when the court ordered them to be 'filed of record in this cause nunc pro tunc, as if presented in open court on the trial of this cause immediately after the court's charge and before the jury retired. ' The first seven assignments of error are founded on the exceptions so granted, and are in direct violation of rule 10 of this court (224 F. vii, 137 C.C.A. vii), which provides as follows:

'The judges of the District Courts shall not allow any general exception to the whole of the charge to the jury in a civil or a criminal trial at common law, nor shall a series of exceptions be allowed which produces the same result. But the party excepting shall state distinctly and separately the several matters in such charge to which he excepts, and only such matters shall be included in the bill of exceptions and allowed by the court. Exceptions to the charge or to the judge's action upon the requests for instruction shall be taken immediately on the conclusion of the charge before the jury retire, shall be specified in writing or dictated to the stenographer, and shall be specific and not general.'

The assignments referred to will therefore not be considered, and we shall confine our attention to the eighth, ninth, and tenth. In order that these may be understood, a brief statement of facts is necessary:

The plaintiff is the widow of Joseph Vozar, a miner in the Coal Company's service, who lost his life on September 6 1913. The mine is in Cambria county, Pa., and contains an upper and a lower vein of bituminous coal. These veins are connected by a tunnel several hundred feet long, sloping through solid rock at a 4 per cent. grade. The deceased, whose occupation was loading coal into mine cars, had been working in the upper vein. On the day in question, he and his son had quit work and were walking down through the tunnel to the mouth of the mine. The tunnel is a main haulage way, and cars are moved along its length by an electric motor. The track is about 1 1/2 feet distant from one wall or rib, and about 6 1/2 or 7 feet distant from the other wall. The miners were accustomed to use this means of exit, and the wider space was sufficient for safety under ordinary circumstances, especially if the cars remained on the track. While Vozar and his son were still in the tunnel, they were overtaken by a motor drawing a train, and the deceased was killed by a car that left the track (owing to the breaking of an axle) and crushed him against the wall. The only negligence charged against the company is the violation of article 4, Sec. 8, of the Pennsylvania Act of 1911 (P.L. 756) in failing to provide shelter holes along the tunnel. The company admitted their absence, but contended that the act had been substantially complied with, because the tunnel was unusually wide, so wide in fact as to provide more protection than the statute contemplates. Another defense was that the broken axle was the proximate cause of the injury, and that no negligence in this particular had been charged or proved. Still further, it was insisted that the Pennsylvania act had put the tunnel under the exclusive control of the mine foreman, and had thus relieved the company from liability for the absence of shelter holes. And, finally, the contributory negligence of the deceased was set up as a complete reply to the plaintiff's claim. The trial judge instructed the jury as a matter of law that the company was negligent in failing to provide shelter holes, and submitted the question of proximate cause and of contributory negligence.

This brings us to the assignments of error. The eighth complains that the defendant's third point was not affirmed without qualification. The point and the answer are as follows: 'If the jury find from the evidence that the defendant had not complied with the act of assembly requiring shelter holes, if the absence of shelter holes was not the proximate cause of the injury to the decedent, the plaintiff cannot recover, and the verdict must be for the defendant.

'Answer: This point is affirmed, subject to my definition of proximate cause as given to you in the general charge.'

This qualification merely recalled the attention of the jury to the general instructions on the subject of proximate cause, and, as these instructions are not the subject of a valid assignment, we see no error in the answer.

The ninth assignment is to the refusal of the fourth point:

'A failure to provide shelter holes along the haulage way was not the immediate and proximate cause of the injuries complained of, nor were those injuries the necessary and probable result of the failure on the part of the defendant to provide shelter holes, nor was the absence of shelter holes a concurrent cause of the injuries complained of; but the injuries were the direct result of the breaking of an axle, which derailed the car and thereby caused the injuries, and in this case there is no claim of any negligence in the construction, equipment, or inspection of the said car, and therefore the verdict must be for the defendant.'

This point was rightly refused, because it asked the court for binding instructions, whereas the evidence required the question of proximate cause to be submitted to the jury.

The tenth assignment complains of the court's refusal to instruct the jury on the whole case in favor of the defendant. This fairly raises the question whether the failure to provide shelter holes is chargeable exclusively to the mine foreman, or is chargeable also to the company. In Pittsburgh, etc., Co. v. Cheko, 204 F. 353, 124 C.C.A. 451, we had occasion to consider the Pennsylvania cases on the subject of a mine foreman's status, and we need not repeat what was there said. The present controversy concerns a different aspect of the mineowner's liability, and the state court has recently decided several cases thereon that need consideration. When the tunnel was constructed in 1910, the Mining Act of 1893 was in force, which provided in article 6, Sec. 4, that:

'On all hauling roads whereon hauling is done by machinery, and all gravity and inclined planes inside mines upon which the persons employed in the mine must travel on foot to and from their work, such shelter holes shall be cut not less than two feet six inches into

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