Colleoni v. Delaware & Hudson Co.
| Decision Date | 15 May 1922 |
| Docket Number | 187 |
| Citation | 274 Pa. 319,118 A. 248 |
| Parties | Colleoni, Appellant, v. Delaware & Hudson Co. et al |
| Court | Pennsylvania Supreme Court |
Argued February 20, 1922
Appeal, No. 187, Jan. T., 1922, by plaintiff, from judgment of C.P. Lackawanna Co., Jan. T. 1916, No. 310, on verdict for defendant, in case of Nazzarena Colleoni v. Delaware & Hudson Co. and Frank Fidati. Affirmed.
Trepass for death of plaintiff's husband. Before MAXWELL, P.J. specially presiding.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff. Judgment for defendant n.o.v., quoting record. Plaintiff appealed.
Error assigned, inter alia, was judgment n.o.v., quoting it.
The judgment is affirmed.
R. W Archbald and Charles B. Little, for appellant. -- Fidati was not an independent contractor, but was the agent and representative of the mine owner, in immediate charge of the work in which plaintiff's husband was killed: McColligan v. R.R., 214 Pa. 229; Herrington v. Booth, 252 Pa. 70; Ricks v. Flynn, 196 Pa. 263; Campbell v. Wells, 256 Pa. 446.
The negligence which was the cause of the accident was sufficiently set forth in the statement of claim and there was no variance between allegations and proof as contended by defendant.
Defendant was not relieved from responsibility for the accident because of having employed a certified mine foreman: Simmons v. Coal Co., 240 Pa. 354; Watson v. Coal & Coke Co., 247 Pa. 469; Whittaker v. Coal Co., 260 Pa. 209; Bogdanovicz v. Coal Co., 240 Pa. 124; Peters v. Coal Co., 243 Pa. 241; Cossette v. Coal Mining Co., 259 Pa. 520; Hood v. Mining Co., 231 Pa. 647; Kolalsky v. D. & H. Co., 260 Pa. 357; Walcutt v. Coal & C. Co., 226 Pa. 204; Mingak v. Coal Co., 51 Pa. Superior Court 584.
James H. Torrey, for appellees. -- Under the written contract between Fidati and the Delaware & Hudson Co., Fidati was an independent contractor and neither a servant nor vice principal of company: Kelley v. R.R., 270 Pa. 426; Smith v. Ins. Fund, 262 Pa. 286; Hunt v. R.R., 51 Pa. 475; Coates v. Chapman, 195 Pa. 109; Erie School Dist. v. Fuess, 98 Pa. 600; Thomas v. Ry., 191 Pa. 361.
The company defendant, having employed a certified mine foreman, is not responsible to plaintiff: Durkin v. Coal Co., 171 Pa. 193; Golden v. Coal Co., 225 Pa. 164; Dempsey v. Coal Co., 227 Pa. 571; Rafferty v. Mining Co., 234 Pa. 66; Watkins v. Lehigh C. & N. Co. 240 Pa. 419; Redstone Coke Co. v. Roby, 115 Pa. 364.
The duty to secure and place props for the support of the roof devolved upon the miner by whom plaintiff's decedent was employed as a laborer, and the Delaware & Hudson Company cannot be held for the omission of that duty.
Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Plaintiff sued on behalf of herself and minor children to recover damages for the death of her husband Guglielmo Maffeis, who was killed December 2, 1914, by the falling of a roof in the Grassy Island Coal Mine of defendant corporation, in which he, with others, was engaged in the work of removing pillars. The negligence charged was failure to insert sufficient props to support the mine roof. The action was brought jointly against the owner of the mine and Fidati, the other defendant, by whom the work was being done under a written contract with the mine owner. A verdict was rendered in favor of plaintiff, the court below, however, subsequently entered judgment non obstante veredicto for defendants, from which order plaintiff appealed.
By the terms of the contract above referred to Fidati agreed A witness called by plaintiff testified he was engaged in the work with Maffeis and several days before the accident had called Fidati's attention to the danger to workmen, owing to the unsupported condition of the roof in a chamber immediately joining that in which they were at the time working and was informed that the support was ample and that no danger existed from that source. Plaintiff relies upon this evidence in support of the contention that defendant, through Fidati, had notice of the danger and failed to take precautions to avert the accident which followed and that, though the mine owner is not liable for the negligence of the mine foreman, he is liable for his own negligence in permitting a known dangerous condition to exist without taking proper precautions to remedy the unsafe situation. Peters v. Vesta Coal Co., 243 Pa. 241; Cossette v. Paulton Coal Mining Co., 259 Pa. 520. This contention presents for consideration the question whether under the writing above quoted Fidati was an employee of his codefendant, or whether his employment was that of an independent contractor to the extent that notice to him would not be notice to the mine owner.
Under the contract, Fidati was obliged to furnish the workmen necessary to carry out his agreement, fix their wages and report their time to the company, who paid to those engaged in the work the amount due each and charged such payments against the contract. The mine owner, under the contract furnished the equipment, including "mules, cars, timber and track material," reserving, however, the right to cancel the contract on five days notice but retaining no control over the workmen or over the manner of doing the work, except such as might be inferred from the stipulation...
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