Coleman v. Keenan

• Decision Date: 04 January 1909
• Docket Number: 166
• Citation: 223 Pa. 29,72 A. 267
• Parties: Coleman v. Keenan, Appellant
• Court: Pennsylvania Supreme Court

72 A. 267

223 Pa. 29

Coleman v. Keenan, Appellant

No. 166

Supreme Court of Pennsylvania

January 4, 1909

Argued October 16, 1908

Appeal, No. 166, Oct. T., 1908, by defendant, from judgment of C.P. Washington Co., Feb. T., 1908, No. 70, on verdict for plaintiff in case of Harry E. Coleman v. D. F. Keenan. Reversed.

Trespass to recover damages for personal injuries. Before TAYLOR, J.

The circumstances of the accident are stated in the opinion of the Supreme Court.

The court refused binding instructions for defendant.

Verdict and judgment for plaintiff for $1,845.83. Defendant appealed.

Errors assigned were in refusing binding instructions for defendant and in overruling defendant's motion for judgment non obstante veredicto.

John H Murdoch, with him Edgar B. Murdoch, for appellant. -- The Employers' Liability Act of June 10, 1907, P.L. 523, has, of course, in some respects, enlarged and extended the liability of employers but, except in the special cases set forth within that act, and under the special circumstances therein defined, the duties of master and servant remain the same as they have always been. Doubtless it was the intention of the plaintiff to bring this case within the terms of the act of 1907, but it was admitted by his counsel upon the trial of the case that they had not been able to do so, because it was not shown that the man Mike, whose duty they said it was to give the warning, was occupying any of the positions named in the act of 1907, by which he would become such a representative as would render the employer liable for his negligence. Practically the terms of the act of 1907 do not very greatly change the law as it stood prior to its passage. Looking at the act carefully we find that the cases in which the employer is to be liable are very accurately defined and limited and they are as follows, to wit:

1. "Any defect in the works, plant or machinery," which is precisely a statement of the law as it has always existed.

2. "The neglect of any superintendent, manager, foreman or any other person in charge or control of the works, plant or machinery." In other words, the vice principal, just as the law has always stood.

3. "The negligence of any person in charge of or directing the particular work in which the employee was engaged at the time of the injury or death." This again is the vice principal idea, but probably somewhat extended from what it was before.

4. "The negligence of any person to whose orders the employee was bound to conform and did conform, and by reason of his having conformed thereto the injury or death resulted."

5. And lastly, the act of "any fellow-servant done in obedience to the rules, instructions or orders given by the employer or any other person who has authority to direct the doing of said act." This may be held to be a new extension, but it will be noticed that the extension is very closely drawn, and the fellow servant whose negligence makes the employer liable must himself have been acting directly under general or special orders from the employer or his legal representative.

Examining the testimony in this case in the light of the employers' liability act of 1907, it becomes very plain that it could not have been ruled by that act.

The defendant, D. F. Keenan, is not liable in this action for the injuries received by the plaintiff, for the reason that the negligence shown in the case was exclusively the negligence of the Hungarian, Mike, who did not occupy any representative capacity which would render the defendant so liable; and there being no dispute in the evidence, this question was clearly for the determination of the court upon the request for binding instructions.

It may be argued in this case that, it being the legal duty of the defendant to furnish his workmen with a reasonably safe place in which to work, he is bound to see that it is kept reasonably safe and that the failure to give warning was in violation of this duty of the employer. The case of Hussey v. Coger, 112 N.Y. 614, cited in the case of Miller v. American Bridge Co., 216 Pa. 559, seems to be a sufficient answer for this purpose.

A. G. Braden, with him Charles W. Campbell, for appellee, cited: Conley v. Lincoln Foundry Co., 14 Pa.Super. 626; Walbert v. Trexler, 156 Pa. 112; Glossen v. Gehman, 147 Pa. 619.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE FELL:

This was an action by an employee to recover for injuries caused by being struck by gravel and small stones used in tamping a blast. The negligence alleged was in firing the blast without first giving the customary warning. The defendant was a railroad contractor and at one place on the work had a number of men engaged in making a long and deep cut...