Durkin v. Kingston Coal Co.

• Citation: 171 Pa. 193,33 A. 237
• Decision Date: 07 October 1895
• Docket Number: 290
• Parties: Thomas Durkin v. The Kingston Coal Company and William Jones, Appellants, and Morgan Rosser
• Court: United States State Supreme Court of Pennsylvania

33 A. 237

171 Pa. 193

Thomas Durkin v. The Kingston Coal Company and William Jones, Appellants, and Morgan Rosser

No. 290

Supreme Court of Pennsylvania

October 7, 1895

Argued April 18, 1895

Appeal, No. 290, Jan. T., 1895, by the Kingston Coal Co. and William Jones, two of the defendants, from judgment of C.P Luzerne Co., Oct. Term, 1891, No. 330, on verdict for plaintiff. Reversed as to the Kingston Coal Company, and affirmed as to William Jones.

Trespass to recover damages for the death of plaintiff's son caused by the alleged negligence of defendants. Before LYNCH, J.

At the trial it appeared that the boy, who was about nineteen years old, was employed as a driver by the Kingston Coal Company. On June 15, 1891, while he was engaged in driving a car, a portion of the mine fell in, and the boy was crushed under the debris. The evidence for the plaintiff tended to show that William Jones, the mine foreman, employed under the mining law of June 2, 1891, had neglected to make an examination of the locality where the accident occurred, as required by the mining act. Morgan Rosser was assistant superintendent of the mine.

The court charged in part as follows:

[Returning now to the question of the liability of the Kingston Coal Company as distinguished from that of Mr. Jones, I repeat, that if you shall determine from the weight of the credible evidence that Mr. Jones was the mine foreman of the Kingston Coal Company -- and about that there seems to be no dispute -- at the time of this accident, and that he failed to use ordinary care and caution in the matter of examining the roof, and that by reason of that failure, and that alone, this unfortunate accident occurred, the Kingston Coal Company may be held responsible under this act. The Kingston Coal Company is in duty bound to furnish only a reasonably safe place for its workmen; or, to use the exact language of the Supreme Court, "A master owes to his servant the duty of providing a reasonably safe place in which to work, and reasonably safe appliances with which to do the work; and the delegation of this duty to an agent will not relieve the master from responsibility for an injury resulting from his negligence." In other words, since the act of 1891, the mere fact that the Kingston Coal Company had employed a competent, certified, inside foreman in this mine, and had placed it in his charge, will not exempt the company from liability. It would have done so before this act, but it does not now. There is no evidence that the Kingston Coal Company, or its general superintendent, Mr. Edwards, had personal knowledge of the condition of the roof. So that if you shall find a verdict against the company, it must be upon the evidence as to the negligence of Jones, the inside foreman. Hence the all-important question is, Was Mr. Jones guilty of failing to use ordinary care to furnish a reasonably safe place for this boy to work in?]

I am asked by counsel for the defense to say to you that as to the defendant, Rosser, the evidence does not disclose negligence that entitles the plaintiff to recover against him. The point is affirmed. The statute of 1891 makes the employer liable for the negligence of the mine foreman, but it does not make the assistant superintendent, or the fellow servant of the mine foreman, responsible for his negligence; and it is clearly the case here, from the weight of the evidence, that if negligence occurred at all, it was the negligence of Mr. Jones. It was his duty as mine foreman to examine the workings of the mine and to see that it was reasonably safe, and it was not, under the circumstances shown here, the duty of Mr. Rosser to do so. In any event you should render a verdict in favor of Mr. Rosser.

I am also asked to charge you that as to the defendant, Jones, the evidence proves nothing more than an error in judgment on his part, for which he is not liable to answer in damages to the plaintiff, and therefore there can be no recovery against him in this case. I cannot affirm the point, but if you shall find that it was simply an error of judgment upon the part of Mr. Jones, there can be no verdict rendered against him.

The Kingston Coal Company presented these points:

1. That the negligence, if any, shown by the evidence, which occasioned the injury, was the negligence of a fellow servant, for which the company is not liable, and therefore the verdict must be for the defendants. Answer: I decline to affirm that for the reason given; to wit, that the act of 1891, in my opinion, has changed the law upon the subject. [1]

2. That the evidence does not disclose a case of negligence upon the part of the Kingston Coal Company, and the negligence of Rosser and Jones, even if it existed, cannot be lawfully imputed to them, and therefore the verdict must be for the defendants. Answer: That is substantially the same question, and I decline to affirm the point. [2]

3. That under all the evidence the verdict must be for the defendants, the Kingston Coal Company. Answer: I decline to affirm that. [3]

The defendants Rosser and Jones presented these points:

1. That as to them the act of 1891 gives no cause of action, and the declaration being under that act, no verdict can be rendered against them. Answer: I decline to charge as requested in that point, but state to you that there should not be a verdict against Rosser. [5]

2. That the duty of one fellow servant toward another is nothing more than to exercise ordinary care. Answer: This part of the point is affirmed. I have before charged you to this effect.

And that the weight of the evidence in this case shows no lack of ordinary care on the part of Rosser and Jones toward the deceased man, Durkin. Answer: I decline to affirm that portion of the point, so far as Jones is concerned; it is a question of fact for the jury to pass upon. [6]

3. That under all the evidence there can be no verdict against Rosser and Jones. Answer: I decline to affirm that as to Jones. I have already instructed you that there can be no verdict against Mr. Rosser. [7]

Verdict and judgment for plaintiff for $727.58 against the Kingston Coal Company and William Jones, and verdict for Morgan Rosser. Kingston Coal Company and William Jones appealed.

Errors assigned were (1-7) above instructions, quoting them.

The judgment against Wm. Jones is affirmed.

H. W. Palmer and Samuel Dickson, Wm. C. Price with them, for appellants. -- The act of 1891 is local and special: (a) Because applicable to anthracite mines only; (b) because applicable only to such anthracite mines as employ over ten men; (c) because it is a regulation of labor applicable only to miners and laborers employed in certain anthracite mines; (d) because it is a regulation of mining applicable only to certain anthracite mines; (e) because under its provisions employers of certain kinds of labor, to wit, labor in certain anthracite mines, are subject to liability not imposed upon any other employers of labor in or out of mines in the commonwealth, viz, to liability to workmen for negligence of fellow servants resulting in injury: Waddell & Walter v. Simoson, 112 Pa. 567.

In the absence of constitutional prohibition, legislation of this character cannot be sustained: Millett v. People of the State of Illinois, 117 Ill. 294; Cooley, Const. Lim. 1st ed. p. 391; People v. Marx, 99 N.Y. 377.

This action is brought under the statute which gives the action against the operator for negligence of the boss. Such an action cannot be sustained without the aid of the statute. But the bosses are joined in the suit. The statute gives no action against them. If they are liable to fellow servants for injuries arising from their negligence, it would be in a common law action. We have then parties liable only at common law joined with parties liable only under a statute. This is a misjoinder, and the appellant, Jones', first point should have been affirmed: Smith v. Meanor, 16 S. & R. 377; 2 Inst. 200; 4 Burr. 335; Kendrick v. Chicago & Alton R.R., 81 Mo. 521.

John T. Lenahan, Edward A. Lynch with him, for appellee.

The contention that the act of 1891 is unconstitutional because it appeals to anthracite mines employing more than ten persons finds no support, either in authority or reason: Act of March 3, 1870, P.L. 3; act of April 18, 1877, P.L. 56; Haddock v. Com., 103 Pa. 245; Cambria Iron Co. v. Shaffer, 8 A. 204; Com. v. Bonnell, 8 Phila. 534; Com v. Wilkes-Barre Coal Co., 29 Leg. Int. 213; Wheeler v. Phila., 77 Pa. 351; Kilgore v. M'Gee, 85 Pa. 401; Lackawanna Twp., 160 Pa. 404.

If a law is general and uniform throughout the state, operating alike upon all persons and localities of a class who are brought within the rules and circumstances provided for it, it is not objectionable as wanting a uniformity of operation: Reading v. Savage, 124 Pa. 328; State v. Berka, 30 N.W. 267; State v. Hawkins, 44 Ohio 98; Allen v. Pioneer Press Co., 40 Minn. 117; State v. Hudson, 44 Ohio 137; M'Aunich v. R.R., 20 Iowa 338.

The act of 1891 is clearly a reasonable exercise of the police powers of the state: 3 Cooley, Const. Lim. 574; State v. Noyes, 47 Maine, 211; Powell v. Com., 114 Pa. 294; Com. v. Vrooman, 164 Pa. 306; Wright v. Com., 77 Pa. 470; Mayor v. Williams & Price, 15 N.Y. 502; Thorpe v. Rutland R.R., 27 Vt. 148; R.R. v. Husen, 95 U.S. 465; State v. Yopp, 97 N.C. 477; Dabbs v. State, 39 Ark. 353.

The statement or declaration in the case at bar was drawn in pursuance of the procedure act of 1887, P.L. 271. That act abolished special pleading and the distinctions theretofore existing between actions ex delicto. It has always been the law of this state that a joint action could be maintained when an injury resulted from the concurrent negligence of several persons: Klauder...