Delaware, L. & W.R. Co. v. Yurkonis

• Decision Date: 12 January 1915
• Docket Number: 123.
• Citation: 220 F. 429
• Parties: DELAWARE, L. & W.R. CO. v. YURKONIS.
• Court: U.S. Court of Appeals — Second Circuit

220 F. 429

DELAWARE, L. & W.R. CO. v. YURKONIS.

No. 123.

United States Court of Appeals, Second Circuit.

January 12, 1915

F. W Thomson, of New York City, for plaintiff in error.

J. V Bouvier, Jr., and W. Montague Geer, Jr., both of New York City, for defendant in error.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

WARD Circuit Judge.

This is a writ of error to review a judgment entered on the verdict of a jury in favor of the plaintiff for $50,000 for personal injuries sustained by him while in the employment of the defendant, which verdict under an order of Judge Chatfield the plaintiff consented to reduce to $36,000.

July 6 1911, the plaintiff, who was a certified miner, employed for 18 years in the Pettibone anthracite coal mine, owned by the defendant, was terribly injured by the explosion of a blast which he had prepared. May 7, 1913, this action was brought in the Supreme Court of New York for Richmond county, and removed by the defendant to the United States District Court for the Eastern District of New York. The complaint proceeded upon the theory that the blast was prematurely exploded before the plaintiff could get away by an explosion of gas due to the defective ventilation of the place where he was working, in violation of the Pennsylvania Mining Law of June 2, 1891.

The amended complaint set forth sections 1, 4, 8, and 9 of article X and rules 1 and 9 of article XII, also section 8 of article XVII which are as follows:

'Article X. * * *

'Section 1. The owner, operator or superintendent of every mine shall provide and maintain a constant and adequate supply of pure air for the same, as hereinbefore provided. * * *

'Sec. 4. The ventilating currents shall be conducted and circulated to and along the face of each and every working place throughout the entire mine, in sufficient quantities to dilute, render harmless and sweep away smoke and noxious or dangerous gases, to such an extent that all working places and traveling roads shall be in a safe and fit state to work and travel therein. * * *

'Sec. 8. All cross-cuts connecting the main inlet and outlet air-passages of every district, when it becomes necessary to close them permanently, shall be substantially closed with brick or other suitable building material, laid in mortar or cement whenever practicable, but in no case shall said air-stoppings be constructed of planks except for temporary purposes.

'Sec. 9. All doors used in assisting or in any way affecting the ventilation shall be so hung and adjusted that they will close automatically.'

'Article XII.

'Rule 1. The owner, operator or superintendent of a mine or colliery shall use every precaution to insure the safety of the workmen in all cases, whether provided for in this act or not. * * *

'Rule 9. In every working approaching any place where there is likely to be an accumulation of explosive gases, or in any working in which danger is imminent from explosive gases, no light or fire or other than a locked safety lamp, shall be allowed or used.'

'Article XVII. * * *

'Sec. 8. That for any injury to person or property occasioned by any violation of this act or any failure to comply with its provisions by any owner, operator, superintendent, mine foreman or fire boss of any coal mine or colliery, a right of action shall accrue to the party injured against said owner or operator for any direct damages he may have sustained thereby.'

Also the Pennsylvania Employers' Liability Act of June 10, 1907 (P.L. 523), which is as follows:

'Section 1. Be it enacted, etc., that in all actions brought to recover from an employer for injury suffered by his employe, the negligence of a fellow servant of the employe shall not be a defense, where the injury was caused or contributed to by any of the following causes, namely: Any defect in the works, plant, or machinery, of which the employer could have had knowledge by the exercise of ordinary care; the neglect of any person engaged as superintendent, manager, foreman or any other person in charge or control of the works, plant, or machinery; the negligence of any person in charge of or directing the particular work in which the employe was engaged at the time of the injury or death; and negligence of any person to whose orders the employe was bound to conform, and did conform, and, by reason of his having conformed thereto, the injury or death resulted; 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.

'Sec. 2. The manager, superintendent, foreman, or other person in charge or control of the works, or any part of the works, shall, under this act be held as the agent of the employer, in all suits for damages for death or injury suffered by employes.

'Sec. 3. All acts or parts of acts inconsistent herewith be and the same are hereby repealed.'

The mine consisted of a series of coal levels separated by strata of rock, and extended 1,047 feet below the surface of the ground; the level where the plaintiff was working being 500 feet below the surface.

All these levels were ventilated by a ventilating fan, which sucked the air out of the mine and so caused a vacuum into which fresh air rushed.

The plaintiff was working in a chamber about 400 feet in length running east and west, and around it a continuous gangway was gradually constructed as the work progressed, to be used by the miners as a working place. In the middle of the west end two doors were placed, opposite to each other, with a space between, so that one would always be shut when the other was open, making an air lock. The air entered this chamber at a point south of these doors, and then went by the south side to the east end, thence north to the north side, and thence back into the main gangway. A miner named Fine and his helper had the mining on the south side of the chamber, and the plaintiff and his helper had the mining on the north side. They made a series of north and south cross-cuts into the coal 60 feet apart, as required by law, working toward each...