Cavanaugh v. Avoca Coal Co.
| Decision Date | 23 June 1908 |
| Docket Number | 322 |
| Citation | 70 A. 997,222 Pa. 150 |
| Parties | Cavanaugh, Appellant, v. Avoca Coal Company |
| Court | Pennsylvania Supreme Court |
Argued April 13, 1908
Appeal, No. 322, Jan. T., 1907, by plaintiff, from judgment of C.P. Luzerne Co., May T., 1904, No. 126, for defendant non obstante veredicto in case of William Cavanaugh and Catharine Cavanaugh v. Avoca Coal Company. Affirmed.
Trespass to recover damages for death of plaintiff's son. Before WHEATON, J.
The facts are stated in the opinion of the Supreme Court.
Error assigned was in entering judgment for defendant non obstante veredicto.
We agree with the conclusion reached by the court below, and the judgment is affirmed.
Paul J Sherwood, of Sherwood & Hess, with him Wm. H. Hines and Edward Lynch, for appellants. -- The act of 1891 imposes no duty of obedience to a statutory officer on the mine owner compels no hiring of a particular official therein created, takes away none of the owners' rights of control, provides no punishment for running engines or boilers without a certificate under seal from said official, fails to certify to inspector's competency, authorizes no punishment by imprisonment of owner upon disregard of its provisions, permits the owner to employ and pay a man concerning whose qualifications he is the sole judge, and, lastly, does not require the man so employed to be under bond or subject to a duty to anyone but the owner who employs him: Gulla v. Lehigh Valley Coal Co., 28 Pa.Super. 11; Anderson v. Mfg. Co., 207 Pa. 106; McNeil & Bro. Co. v. Steel Co., 207 Pa. 493; Ross v. Walker, 139 Pa. 42; Prescott v. Engine Co., 176 Pa. 459.
Furthermore, the question of mine inspector's competency under the act of 1891 is a burden of proof upon the employer, not of disproof upon the injured servant: Anderson v. Hays Mfg. Co., 207 Pa. 106.
The act of 1891, art. V, sec. 1, neither changes nor enlarges the common law. The master's duty always was to keep his boilers in "good order," and to have them examined at reasonable intervals. This is a duty imposed on the master before the employee is subject to its risk, and relates to the construction of the plant. Where this duty must be discharged through an officer or agent such officer or agent represents the principal, and his act is the act of the principal. The defendant was bound by the common law and by the act of assembly to see that his boilers "were kept in good order" before its machinery was set in motion and its servants subject to danger: Gulla v. Lehigh Valley Coal Co., 28 Pa.Super. 11; Schiglizzo v. Dunn, 211 Pa. 253; Lillie v. Am. Car & Foundry Co., 209 Pa. 161; McNeil v. Steel Co., 207 Pa. 493; Marsh v. L.V.R.R. Co., 206 Pa. 558; Prescott v. Ball Engine Co., 176 Pa. 459; Ross v. Walker, 139 Pa. 42; Lewis v. Seifert, 116 Pa. 628; Penna., etc., Canal & R.R. Co. v. Mason, 109 Pa. 296.
John McGahren, with him P. A. O'Boyle, for appellee. -- 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, who conduct the same to the best of their skill and ability: Waddell v. Simonson, 112 Pa. 567; Snodgrass v. Steel Co., 173 Pa. 228; Redstone Coke Co. v. Roby, 115 Pa. 364; Anderson v. Hays Mfg. Co., 207 Pa. 106.
Before MITCHELL, C.J., FELL, MESTREZAT, POTTER and STEWART, JJ.
In this action the parents of Malachi Cavanaugh sought to recover damages for his death, which they alleged was the result of the negligence of the defendant company. Cavanaugh was twenty-three years of age, unmarried and lived with his parents. He was employed by the defendant, the Avoca Coal Company, Limited, at its colliery at Avoca, Luzerne county, Pa., as fireman in the boiler house. On July 17, 1903, about 7 A.M., one of the boilers in charge of Cavanaugh exploded, and he was killed. It was alleged by plaintiffs that the explosion was due to the negligence of defendant. The boiler which exploded was one of a group of seven and was the last of the seven installed in defendant's works. It was purchased second hand, about March, 1899, and used by defendant about four years and four months. Plaintiffs charged that the boiler was not in good condition when purchased, and that it was not properly inspected, and that it was never fit for use while in defendant's possession, and that if it had been properly inspected its condition would have been discovered and the explosion would not have occurred.
Defendant denied that the boiler was unsafe and contended that the explosion was due to low water caused by the neglect of Cavanaugh himself to fill it at the proper time. The company also alleged that the boiler had been regularly inspected and reports made every six months, in compliance with the requirements of the Act of June 2, 1891, art. 5, sec. 1, P.L 176, the inspection being made by Edward Newlin, an employee of d...
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