Jaggie v. Davis Colliery Co

• Court: Supreme Court of West Virginia
• Writing for the Court: WILLIAMS
• Citation: 75 W.Va. 370,84 S.E. 941
• Parties: JAGGIE. v. DAVIS COLLIERY CO.
• Decision Date: 22 December 1914

84 S.E. 941
75 W.Va. 370

JAGGIE.
v.
DAVIS COLLIERY CO.

Supreme Court of Appeals of West Virginia.

Dec. 22, 1914.

Rehearing Denied April 20, 1915.

Error to Circuit Court, Randolph County.

Action by Benjamin J. Jaggie, administrator, etc., against the Davis Colliery Company. Judgment for plaintiff, and defendant brings error. Affirmed.

E. A. Bowers, of Elkins, for plaintiff in error.

H. G. Kump, of Elkins, for defendant in error.

WILLIAMS, J. Plaintiff's intestate, who was his son, was employed as motorman in defendant's coal mine, and, as he was bringing a train of loaded cars out of the mine, the motor was derailed and ran against the props at the side of the haulway supporting the roof, knocking some of them down and causing loose rock and slate overhead to fall on him; and kill him. Plaintiff recovered a judgment for $6,000 for his alleged wrongful death, and defendant was awarded this writ of error. The declaration contains 11 counts. A demurrer was interposed to it and to each separate count. The court sustained the demurrer to the third, fourth, seventh, eighth, and ninth counts, and overruled it as to all the others. A number of errors are assigned. We will first consider the one relating to the overruling of the demurrer to the six remaining counts.

The first count, briefly stated, avers that it was defendant's duty to maintain a reasonably safe and suitable motor track in its mine; that it failed to perform its duty in this respect; that the track was defective, uneven, and unsafe, and by reason thereof plaintiff's intestate was killed while engaged in the regular performance of services for defendant. The overruling of the demurrer to this count presents the legal question whether it was defendant's duty to maintain a rea-

[84 S.E. 942]

sonably safe and suitable track in its mine. Such was unquestionably the master's duty at the common law; it was one of the primary duties a master owed to his servant to furnish him a place and appliances, reasonably safe, in and with which to work. Motor tracks in the main haulway of a coal mine partake of the nature of both a place and an appliance. They are permanently laid in the mine, and therefore a part of the place; and they are essential to the operation of the motor, and hence an appliance for the removal of coal. " 'Appliance' is anything brought into use as a means to effect some end." Honaker v. Board of Education, 42 W. Va. 1T4, 24 S. E. 545, 32 L. R. A. 413, 57 Am. St. Rep. 847. Machinery, apparatus, and premises (Collins v. Harrison, 25 R. I. 489, 56 Atl. 678, 64 L. R. A 156), a gate on the side of the platform of a street car (Stappers v. Interurban St. Ry. Co., 56 Misc. Rep. 337, 106 N. Y. Supp. 854), scaffolding for workmen (Phœnix Bridge Co. v. Castleberry, 131 Fed. 175), skids laid over a trench on which iron pipes are placed to rest there until lowered into a trench (Tamaseric v. Beckwith, 145 App. Div. 78, 129 N. Y. Supp. 361, have all been held to be appliances. "Appliances of transportation" include the road bed, tracks, cars, and engines. Burns v. Penna. R. R. Co., 233 Pa. 304, 82 Atl. 246, Ann. Cas. 1913B, 811.

But the principal question with which we are confronted in this case is: Does the statute requiring a mine operator to employ a mine foreman, and prescribing the mine foreman's duties, relieve the operator from his common-law duty to maintain a reasonably safe and suitable track, after he has employed a mine foreman? It is settled by previous decisions that section 24, c. 15H, serial section 483, Code 1913, defining the mine foreman's duties, discharges the master from liability to his servant for injury resulting from failure to do any of those things which are enjoined upon the mine foreman, provided the mineowner or operator has used reasonable diligence to procure a suitable mine foreman. If he has done his duty in this respect, the mine foreman is then held to occupy the relation of fellow servant, and not of vice principal or agent of the master, to every other eniployé in the mine, in respect to those things expressly given in his charge by the statute. Williams v. Thacker Coal & Coke Co., 44 W. Va. 599, 30 S. E. 107, 40 L. R. A. 812; McMillan v. Coal Co., 61 W. Va. 531, 57 S. E. 129, 11 L R. A. (N. S.) 840; Squilache v. Coal & Coke Co., 64 W. Va. 337, 62 S. E. 446; Bralley v. Coal & Coke, Co., 66 W. Va. 278, 66 S. E. 684, 40 L. R. A. (N. S.) 945, 19 Ann. Cas. 510; Peterson v. Paint Creek Collieries Co., 71 W. Va. 334, 76 S. E. 664; and Helliel v. Piney Coal & Coke Co., 70 W. Va. 45, 73 S. E. 289. The statute says the mine foreman shall "keep a careful watch over the ventilating apparatus and the airways, traveling ways, pumps and drainage." This direction is general. In other parts of the section his duties with respect to these things are specifically set forth. Respecting the traveling ways and ventilation, he is required to see that proper break-throughs are made or that brattice is used; that no loose coal, slate, or rock is hanging overhead or along the haulways; that sufficient props, caps, and timbers are furnished to the miners in their respective places of work; that the water is drained out of the working places and they are kept dry, as near as practicable, while the miners are at work; that recesses are made not less than 100 feet apart along the haulways, between the wagon and the ribs, for a refuge place for the men; and, on all haulways, where hauling is done by machinery of any kind, he is required to provide a proper system of signals and a conspicuous light, and to see that such conspicuous light is carried on the front and rear of every trip of cars when in motion in a mine. A number of other duties of the mine foreman are specifically named in the statute. But nowhere in it is he expressly given supervision of the motor tracks and required to see that they are maintained in a safe and suitable condition; nor do we think it can be fairly implied from the language of the statute that the Legislature meant to impose that particular duty upon the mine foreman. To lay a track properly requires engineering skill; skill that a mine foreman, possessing all the requisites prescribed by the statute for his qualification as a mine boss, is not presumed to have. By defining the mine foreman's duties with such great particularity, and expressly naming the things committed to his charge, and omitting to mention the supervision of the motor tracks as one of them, although it is evident the Legislature had in mind the removal of coal by electric motors, for it required the foreman to provide a system of lights and signals on haul-ways where hauling was done by machinery, evinces a clear legislative purpose not to include the care of the tracks as a part of his duties. Supervision of the tracks is not a duty to be implied; it is not essential to the complete performance of any of the acts expressly required of the mine foreman. By the common law the servant was given a right of action for neglect of duty proximately causing him injury, and by statute his personal representative is given such right of action in ease of his...