Lee v. New River & Pocahontas Consol. Coal Co.

• Decision Date: 06 March 1913
• Docket Number: 1,084.
• Citation: 203 F. 644
• Parties: LEE v. NEW RIVER & POCAHONTAS CONSOL. COAL CO.
• Court: U.S. Court of Appeals — Fourth Circuit

203 F. 644

LEE v. NEW RIVER & POCAHONTAS CONSOL. COAL CO.

No. 1,084.

United States Court of Appeals, Fourth Circuit.

March 6, 1913

Henry S. Cato and Adam B. Littlepage, both of Charleston, W.Va (Cato & Bledsoe, of Charleston, W. Va., on the brief), for plaintiff in error.

C. W Dillon, of Fayetteville, W.Va. (Dillon & Nuckolls, of Fayetteville, W. Va., on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and DAYTON and SMITH, District judges.

SMITH District Judge.

This case comes up upon a writ of error to a judgment in favor of the defendant in an action at law to recover damages for the defendant's negligently causing the death of a boy. The defendant is a coal mining corporation, and employs among its employes those who are denominated 'trappers.' The duties of a trapper appear to have been to open and close a trapdoor in the mine, which is closed or kept closed by the air pressure in the mine. The performance of this duty requires no great amount of strength or intelligence, as it means simply the opening and closing of a door whenever it is necessary for the purpose of allowing the passage of cars loaded with coal from the mine, or their return empty to the mine. One Charles Wellman was employed as a trapper for this purpose. He was a youth of about 14, and seems to have been perfectly capable in all respects of performing his duties and understanding them thoroughly. He had acquired the nickname of 'Speedy' from his activity and quickness in performing his work. He lived with his father, and his father was also employed in the mine. On the day of the accident which resulted in his death he had gone back to work after having performed his full duty the day before and during the night preceding; that is, the evidence showed that he had worked on the 16th day of March from about 7 o'clock in the morning until about 6 o'clock in the afternoon, with the exception of an hour at dinner; that he had worked from about half past 7 o'clock on the evening of the 16th until nearly 6 o'clock on the morning of the 17th, and had again gone to work at about 7 o'clock on the morning of the 17th, and was killed about half past 9. He was killed by an electric motor bringing cars loaded with coal out of the mine, and when it approached where the boy was he was lying apparently asleep, with his head resting upon one of the rails. When discovered by the brakeman on the motor, it was too late to permit the stopping of the motor which ran over the boy, crushing his head, and causing almost immediate death.

The evidence shows that the working of the boy for this length of time, say practically the whole time from 7 o'clock in the morning of one day until half past 9 o'clock in the morning of the next day, with comparatively short stops for his meals, was with the knowledge of his father, who worked in the mine, and that when the boy went back to work on the morning of the second day, after having been at work all of the preceding night, it was with the knowledge and assent of his father. There is some contest about what was the age of the boy. The law of West Virginia prohibits the employment in coal mines of any boy under the age of 14 years, and requires that, in cases of doubt, the parents or guardians of such boy shall furnish affidavits of their ages, and that any operator, agent, or mine foreman who shall knowingly violate the law, or if any person shall knowingly make a false statement as to the age of the boy, they shall, upon conviction, be fined or imprisoned as the statute directs. There is some conflict in the testimony as to whether or not the affidavits or statements were furnished in this case. The evidence for the defendants is to the effect that they did have written statements from his father that the boy was over the age of 14. This is denied by his father, and there is evidence that the boy at the time of his death was under 14 years of age. The testimony of his mother is that he was born on the 19th day of November, 1895, and according to the evidence his death occurred on the 17th day of March, 1909; so that he was under 14 years of age at the time of his death. If it is proved, therefore, that he had been employed by the mining company with the knowledge that he was under the age of 14, the parties responsible for that employment would be liable to the penalty imposed by the statute; and it also may be that the knowingly...