Dobra v. Lehigh Valley Coal Company

• Decision Date: 03 July 1915
• Docket Number: 334
• Citation: 95 A. 465,250 Pa. 313
• Parties: Dobra v. Lehigh Valley Coal Company, Appellant
• Court: Pennsylvania Supreme Court

95 A. 465

250 Pa. 313

Dobra v. Lehigh Valley Coal Company, Appellant

No. 334

Supreme Court of Pennsylvania

July 3, 1915

Argued April 13, 1915

Appeal, No. 334, January T., 1915, by defendant, from judgment of C.P. Luzerne Co., December T., 1910, No. 5, on verdict for plaintiffs, in case of George Dobra, by his next friend and mother, Susie Dobra, and Susie Dobra in her own right v. Lehigh Valley Coal Company. Judgment for George Dobra, affirmed. Judgment for Susie Dobra, reversed.

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

The opinion of the Supreme Court states the facts.

Verdict for George Dobra for $10,000 and for Susie Dobra for $1,500 and judgment thereon. Defendant appealed.

Errors assigned were instructions to the jury, answers to points the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n.o.v.

The judgment for the plaintiff, Susie Dobra, the mother, is reversed. The judgment for the plaintiff, George Dobra, is affirmed.

P. F. O'Neill, with him F. W. Wheaton, for appellant. -- A parent may not recover consequential damages for personal injuries occasioned to a minor child by a mine owner's violation of the Act of June 2, 1891, P.L. 176, and not resulting in death: Hoover v. Heim, 7 Watts 62.

The mere promise to repair the alleged defect was not sufficient to relieve the employee from assuming the risk of injury therefrom in the absence of evidence that he relied upon the promise: Hollis v. Widener, 221 Pa. 72; Showalter v. Fairbanks, Morse & Co., 88 Wisc. 376 (60 N.W. 257); Roy v. Hodge, 74 N.H. 190 (66 A. Repr. 123); Erdman v. Illinois Steel Co., 95 Wis. 6 (69 N.W. 993); Bodwell v. Nashua Mfg. Co., 70 N.H. 390 (47 A. Repr. 613); Louisville & N.R. Co. v. Goodwin, 140 Ky. 837 (131 S.W. Repr. 1012).

The evidence did not show that the defendant was negligent: Black v. Philadelphia R.T. Co., 239 Pa. 463; Ely v. Pittsburgh, Etc., Ry. Co., 158 Pa. 233.

Abram Salsburg, with him Edward A. Lynch and Mose H. Salsburg, for appellee. -- The case was properly submitted to the jury: Simmons v. L.V. Coal Co., 240 Pa. 354; Bogdanovicz v. Susquehanna Coal Co., 240 Pa. 124; Amiano v. Jones & Laughlin S. Co., 233 Pa. 523; Bowen v. Pa. R.R. Co., 219 Pa. 405.

Before BROWN, C.J., MESTREZAT, POTTER, STEWART and FRAZER, JJ.

OPINION

MR. JUSTICE POTTER:

This was an action of trespass brought by George Dobra, acting through his next friend and mother, Susie Dobra, and by Susie Dobra in her own right, against the Lehigh Valley Coal Company. In the year 1909, the plaintiff, George Dobra, then seventeen years of age, was employed as a car runner in defendant's anthracite coal mine. On June 24th, of that year he was seriously and permanently injured while at work, by being, as he alleged, caught and squeezed between the side of a car and two props, which it was claimed were negligently maintained too close to the track in one of the gangways in the mine, in violation of the provisions of the Anthracite Coal Mine Act of June 2, 1891, P.L. 176. The suit was brought by George Dobra, and his mother, Susie Dobra, who is a widow, to recover damages for his injuries. The case was submitted to the jury, who found a verdict for George Dobra in the sum of $10,000, and for Susie Dobra in the sum of $1,500. From the judgments entered upon these verdicts the defendant has appealed.

The first question raised is, "whether a parent may recover indirect damages for personal injuries occasioned to a minor child by the violation of the Act of June 2, 1891, P.L. 176 and not resulting in death." It is provided in the act in question that for any injury caused by a violation of or failure to comply with the provisions of the act "a right of action shall accrue to the party injured against said owner or operator for any direct damages he may have sustained thereby." It will be noticed that the right of action is given only to "the party injured," and then only for "direct damages." It is evident that the parent was not the party here injured within the meaning of the act, and that even if the term could be held to include a parent, the damage to the parent would not be "direct." The court below permitted the mother to recover on the ground that she had a right of action at common law. That question has not, however, been raised on this appeal. Counsel for appellant and appellee in their respective statements of questions involved limit the question to be determined, in so far as the mother is concerned, to the liability of defendant under the statute, to the mother of the injured workman. Neither in the statement of the questions involved by the appellant, nor in the counter-statement by counsel for appellee is any mention made of liability of the defendant under the common law. Any right of action which she may have had at common law, would have to be determined on common law principles, and in that event the point raised by appellant's fourth assignment of error would require consideration. That question is, "whether a mere promise to repair an alleged defect is of itself sufficient to relieve an employee from assuming the risk of injury therefrom." Plaintiff testified that some two weeks before the accident he told defendant's superintendents that the props were in the way, and were dangerous, and that they promised to remove them. The superintendents denied making any such promise, but the credibility of plaintiff in this respect was for the jury. He did not, however, say that he relied on the alleged promise in continuing his work. In order to overcome the defense of assumption of risk, in an action under the common law, the employee must show affirmatively, not only that he complained of the danger, and that the employer promised to correct it, but that in continuing to work he relied on that promise. Otherwise, he must be held to have assumed the risk. In 4 Labatt on Master and Servant, Section 1345, the rule is thus stated: "After the servant has shown that there has been a promise, actual or implied, on the part of the master, and that this promise amounts to an undertaking to remove not only the danger, but a danger by which he himself is threatened, he still has the onus of proving that the inducing motive of his continuance in the employment was his reliance upon the fulfilment of the promise." Our cases recognize this rule. Thus in Webster v. Monongahela River Consolidated Coal & Coke Co., 201 Pa. 278; Foster v. National Steel Co., 216 Pa. 279; Hollis v. Widener, 221 Pa. 72; Glass v. College Hill Boro., 233 Pa. 457; Pfeifer v. Allegheny Steel Co., 243 Pa. 256, there is...