Hood v. Connell Anthracite Mining Co.

• Decision Date: 17 May 1911
• Docket Number: 49
• Citation: 81 A. 56,231 Pa. 647
• Parties: Hood v. Connell Anthracite Mining Company, Appellant
• Court: Pennsylvania Supreme Court

81 A. 56

231 Pa. 647

Hood v. Connell Anthracite Mining Company, Appellant

No. 49

Supreme Court of Pennsylvania

May 17, 1911

Argued March 14, 1911

Appeal, No. 49, Jan. T., 1911, by defendant, from judgment of C.P. Sullivan Co., Feb. T., 1909, No. 50, on verdict for plaintiff in case of Emma C. Hood v. Connell Anthracite Mining Company. Affirmed.

Trespass to recover damages for the death of plaintiff's husband. Before TERRY, P.J.

At the trial it appeared that Paul Hood, a certified miner, was killed on March 14, 1908, while working in defendant's mine. His death was caused by the falling in of the roof of one of the chambers. The plaintiff claimed that the accident was caused by the negligence of William E. Johnson as mine superintendent. There was evidence that Johnson, who was the mine foreman, was also employed as general superintendent of the mine.

The court charged in part as follows:

Now we are going to leave it to you, gentlemen, to say what the fact is as to whether William E. Johnson was employed in these mines solely in the capacity of a mine foreman, performing only the duties pertaining to that position, or whether in addition to that he was employed by and was acting for the defendant company in a representative capacity, other than the position of mine foreman. Whether he was performing duties for the company, we say, in addition to his statutory duties, in the nature of supervising the work there, and such service as devolves upon the superintendent of the mine. If he was acting solely in his statutory capacity as mine foreman, then the company was not responsible for any negligence upon his part; and if you find that he was employed there simply as mine foreman under the statute that is the end of this case and the plaintiff cannot recover and you need not consider anything else. If, however, you find that in addition to his statutory duties he was acting in a representative capacity for the company, performing additional and other duties for it, then you will consider whether the company has been guilty of such negligence as will authorize a recovery against it.

Now this act of assembly which provides for the appointment of a mine foreman, and under which the mining company is not responsible for the mine foreman's negligence, does not relieve the mine owner of his liability for the unsafe condition of his mine, except when he complies with the act. It does not relieve him if he has knowledge, through his superintendent, that the mine foreman is incompetent and that the mine is unsafe.

The statute provides the remedy, and it is incumbent upon the owner when, through his superintendent, he finds the existence of unsafe conditions in the mine, to proceed to have those conditions remedied in the manner pointed out in the statute; and if this man W. E. Johnson was acting for the defendant company in a representative capacity, in addition to his statutory duties as mine foreman, then notice to him of the unsafe or dangerous condition of a place in which a miner was working would be notice to the company.

If W E. Johnson was acting in this twofold capacity that we have mentioned, as mine foreman under the statute and in a representative capacity for the company, then it was his duty, upon being notified of the unsafe condition of the roof, to take steps to remedy it.

Verdict and judgment for plaintiff for $4,750. Defendant appealed.

Errors assigned were (1) in refusing binding instructions for defendant and (2) in refusing judgment for defendant non obstante veredicto.

Judgment affirmed.

Seth T. McCormick and E. J. Mullen, for appellant. -- The case of Wolcutt v. Erie Coal & Coke Co., 226 Pa. 204, is the authority upon which the court submitted this question to the jury. The Wolcutt case does not rule this case for two reasons: (a) The Wolcutt case was one involving the bituminous mining act while the present case arises under the anthracite mining act. (b) The facts in the Wolcutt case were entirely dissimilar to the facts of the present case.

The failure of Hood to obey the positive mandate of the statute forbidding work to be done, under dangerous conditions, as proved by the appellee's own evidence, was negligence per se and absolutely bars a recovery in this case: Young v. Railway Co., 100 Iowa 357 (69 N.W. 682); Voshefskey v. Coal & Iron Co., 21 A.D. 168 (47 N.Y.S. 386).

The general rule is that where the negligence of the defendant consists of a violation of a statutory duty and hence is called negligence per se, the contributory negligence of the plaintiff or person killed or injured, appears as a defense to an action for damages as in other cases: Krause v. Morgan, 40 N.E. Repr. 886; Queen v. Dayton Coal & Iron Co., 95 Tenn. 458 (32 S.W. Repr. 460, 30 L.R.A. 82); Field v. Chicago, etc., Ry. Co., 14 Fed. Repr. 332; Taylor v. Carew Mfg. Co., 143 Mass. 470 (10 N.E. Repr. 308).

Chas. M. Culver, with him John G. Scouten and David E. Kaufman, for appellee. -- Johnson was acting in a dual capacity as the evidence clearly showed and as the jury found: Durkin v. Coal Co., 171 Pa. 193; Golden v. Coal Co., 225 Pa. 164; Dempsey v. Coal Co., 227 Pa. 571; Wolcutt v. Coal & Coke Co., 226 Pa. 204.

Hood relying upon the superior judgment of this mine foreman and superintendent, believed that the roof was safe and continued working; each morning before beginning his work Hood tested the roof and found no change for the worse, but thought it was getting better. He was not guilty of contributory negligence: Lake v. Weber, 6 Pa. Superior Ct. 42; Max Meadows Land & Imp. Co. v. Mendinhall, 4 Pa. Superior Ct. 398; Mohney v. Cook, 26 Pa. 342; Reese v. Clark, 198 Pa. 312; Schiglizzo v. Dunn, 211 Pa. 253.

Before FELL, C.J., BROWN, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE ELKIN:

If the rule applicable to bituminous mines as laid down in Wolcutt v. Coal & Coke Co., 226 Pa. 204, applies to anthracite mines, then the question whether Johnson was acting in the dual capacity of mine foreman and superintendent was properly submitted to the jury. The learned counsel for appellant insist that there is a distinction...