Colonial Coal & Coke Co v. Gass

• Decision Date: 12 September 1912
• Court: Virginia Supreme Court
• Parties: COLONIAL COAL & COKE CO. v. GASS.

75 S.E. 775

(114 Va. 24)

COLONIAL COAL & COKE CO.

v.GASS.

Supreme Court of Appeals of Virginia.

Sept. 12, 1912.

1. Master and Servant (§ 185^*)—Fellow Servants—Effect of Rule.

A rule of a coal mining company requiring miners to examine the condition of their working places and to report any unsafe condition,.ceasing work until the place is made safe, merely requires each employe to take precautions for his own safety, and does not constitute one miner a vice principal, as affecting liability for death of a fellow minercaused by slate falling from the roof of the mine room.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.^2-*]

2. Death (§ 86*)—Wrongful Death—Damages—Measure.

In an action by a mother for negligent death of her 18 year old son, she is entitled to recover the amount of his probable earnings during what would have probably been his lifetime, and not merely during her probable lifetime, though, having a husband, she was not dependent upon her son for support.

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 112-114, 119; Dec. Dig. § 86.*]

Error to Circuit Court, Wise County.

Action by Pearl Gass, administratrix, against Colonial Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Reversed.

Vicary & Peery and Bullitt & Chalkley, for plaintiff in error.

William H. Werth and E. M. & H. E. Fulton, for defendant in error.

HARRISON, J. Paul Burnett, the plaintiff's intestate, a boy 18 years of age, was killed in the coal mine of the defendant company by a fall of slate from the roof of room No. 36, while engaged in the discharge of his duties as a mule driver. His death is alleged to have been caused by the negligence of the defendant company, and this suit was brought to recover the damages resulting from such negligent killing. There was a verdict and judgment in favor of the plaintiff, which is brought under review by the present writ of error awarded the defendant company.

The plaintiff's third instruction, which is objected to, tells the jury that, "if they believe from the evidence that the defendant put upon Eugene Austin and Roy Shoemaker the duty of exercising ordinary care in providing and maintaining a reasonably safe roof at the place in question, then said Austin and Shoemaker were not fellow servants of Paul Burnett, with reference to this duty, but were the representatives of the defendant as to that duty, and the failure of either of them in the performance of this duty (if such failure there was) would be the personal failure of the defendant itself."

The record shows that Eugene Austin and Paul Shoemaker were ordinary laborers in the defendant's mine; the former operating a machine for cutting the coal, and the latter a coal digger. Independent of the company's rule No. 13, which is relied on by the plaintiff, there is no evidence tending to show that either of these parties was a vice principal of the defendant company.

Rule No. 13 is relied on as showing that it was Austin's duty to look after the roof at the place of the accident. So far as the rule concerns the roof of the mine, or imposes any duty upon Austin, it provides that the machine man "shall also examine the condition of his working place, and, if found unsafe, report the same to the mine boss, and cease work at such place until the same is made safe." This language does not, and was manifestly not intended to, impose upon Austin the duty of providing and maintaining a reasonably safe roof. The whole duty put upon him was to examine the roof when he went to work thereunder, and, if found unsafe, to report the same to the mine boss and cease work until the same was made safe. In other words, so far as reporting a defect was concerned, or staying out of the place until the defect was cured, he was under no higher or further duty than any other employe would have been to report any discovered defect in the roof. Rule 13, so far as applicable to machine operators, meant that they should look out for the purpose of securing their own safety and guarding the machine against danger. It did not mean that they should be charged with the duty of discovering and remedying defects which might result in injury to others. This duty of inspection and having defects remedied rested upon the mine boss, who was the vice principal of the company. It is unquestionably to the interest of all engaged in the dangerous work of mining coal that the company should make it the duty of as many persons as possible to look out for defects and dangers and report the same to the mine boss as soon as discovered. It would, however, place upon the company a burden it could not well bear to hold that every miner was a vice principal of the company, whose duty it was to keep a lookout for defects and report them, when discovered, to the mine boss. The miner, who, for his own protection, is charged with the duty of looking out for defects and reporting them, is not the vice principal of the company, but is a fellow servant of all other employes.

We are of opinion that the instruction under consideration, being without evidence to support it, was erroneous, and should have been rejected.

Instruction No. 4, given for the plaintiff, is subject to the same objection that was urged to No. 3. It tells the jury that it was the duty of Austin and Shoemaker, as well as Draughn, the mine boss, to look after and discover defects in the roof, as mentioned in instruction No. 3, and that, if they failed in the performance of such duty the company was liable. For the reasons already given, this...