Lehigh Valley Coal Co. v. Jones

• Decision Date: 06 May 1878
• Citation: 86 Pa. 432
• Parties: Lehigh Valley Coal Company <I>versus</I> Jones.
• Court: Pennsylvania Supreme Court

86 Pa. 432

Lehigh Valley Coal Company versus Jones.

Supreme Court of Pennsylvania.

March 15, 1878.

May 6, 1878.

March 15th 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas of Luzerne county: Of January Term 1878, No. 242.

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J. Vaughan Darling, Samuel Dickson and Henry M. Hoyt, for plaintiffs in error.—If the proposition embraced by the fourth assignment is law, it becomes practically impossible for any corporation or individual, to conduct any business of a character which requires the employment of other persons in any capacity other than that of common workmen.

The court below instructed the jury, as matter of law, that the outside superintendent, the inside superintendent, the mine boss, and the fire boss were all principals, and that any act of negligence on their part, by which one of the company's employees was injured, bound the company.

The charge is not sustained by Mullan v. Steamship Company, 28 P. F. Smith 251, on which it assumes to rest. All that case decides is that, under all the evidence, it was a question of fact for the jury to say whether the defendants had not conferred on the superintendent "such unlimited authority as to make him their representative, and to make themselves responsible for his default."

Mason, Reese and Jones, were all fellow-servants, and the fact that there was a distinction in the grade of the services makes no difference. It is not necessary that there should be privity of service to apply the rule that the master is not responsible for an injury by a fellow-servant: Gallagher v. Piper, 16 C. B. N. S. 669; Feltham v. England, L. R. 2 Q. B. 33; Searle v. Lindsay, 11 C. B. N. S. 429; Hall v. Johnson, 3 H. & C. 589; Innocent v. Peto, 4 F. & F. 8; Albro v. Canal Company, 6 Cushing 75; Ryan v. Railroad Co., 11 Harris 384; Frazier v. Railroad Co., 2 Wright 104; O'Donnell v. Railroad Co., 14 Wright 490; Caldwell v. Brown, 3 P. F. Smith 453; Meyer v. Railroad Co., 5 Id. 460; Ardesco Railroad Co., 13 Id. 146; Patterson v. Railroad Co., 26 Id. 389. The true rule as to the duties and liabilities of the master towards the servant was arrived at in the English case of Wilson v. Merry, L. R., 1 H. L. Scotch App. Cas. 326; see also Morgan v. The Vale of Neath Railroad Co., L. R., Q. B. 149; Howells et al. v. Landore Simons Steel Co., L. R., 10 Q. B. 62. See also the following cases as to what constitutes fellow-servants: Farnwell v. Railroad Co., 4 Metc. 49; Bartonshill Coal Co. v. Reid, 3 Macq. S. C. App. 295.

Charles E. Rice and Alexander Farnham, for defendant in error.—Many of the authorities cited by the plaintiff in error, as bearing on the fourth assignment of error, are irrelevant, as we do not dispute the doctrine of non-liability for the acts or negligence of a fellow-servant. We deem the remarks of the court in reference to Colonel Mason, Thomas Harris and Edward Davis as unessential, and as not having tended to influence the jury in their deliberations upon the verdict. It was nowhere claimed that Davis or Harris were the parties causing the injury. Even with this statement from the court, if the jury found, agreeably to our points, that A. Reese had entire charge of the mining and ventilation, and that the accident resulted from the negligence of the agent or agents of the defendants, the verdict must be sustained, for there can be no doubt as to Reese's functions, nor that his deliberate act caused the injury.

The point upon which the case of Wilson v. Merry, supra, turns arises from the view there taken of the nature of the master's duty and the workman's implied bargain. This view, it is needless to say, is essentially different from that which has obtained here and elsewhere in this country, as well as in Scotland, and in several of the English cases. It was there held by Lord Cairnes, that in the event of the master not personally superintending and directing the work, he is bound simply "to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work," and that "when he has done this he has done all that he is bound to do;" and further, that "if the persons so selected are guilty of negligence this is not the negligence of the master."

Here, the master's duty is to cause no injury to the workman by his negligence, or by that of his superintendent or middle-man.

There, his duty is, likewise, when managing for himself, to avoid causing injury, by his negligence, to the workman; but if he leaves his business to be managed by others, then his duty is simply to employ a person supposed to be "proper and competent," to manage for him, at which his responsibility ends.

The same distinction is to be observed with respect to the risks the servant is assumed to have taken.

Here, leaving out of view the mechanical and natural risks, he is assumed as having taken the risk of negligence by his fellow-servants, but not the risks arising from the negligence of the master, or his middle-man when the master is not personally superintending the business.

There, he is regarded as agreeing not only to the risk of negligence in fellow-servants, but also to the risk of negligence in the middle-man, or deputy-master, although this personage may be invested with unlimited scope of function and duty in the conduct of the business and in the management of its several methods. That these distinctions are radical is evident. Can there be any doubt that a corporation may be liable to its own servants for negligence? that it can be no more exempt in this respect than an individual ? But how can the negligence of a corporation be shown except by the conduct of those whose will alone must be the will of the corporation, and whose acts are the acts of the corporation, viz.: its managers and middle-men ? Such is the rule in this state: see Frazier v. Penna. Railroad Co., supra; Ardesco Oil Co. v. Gibson, supra; Patterson v. Pittsburgh and Connellsville Railroad Co. 26 Smith 389; Huntington and Broadtop Railroad Co. v. Decker, 1 Norris 119; 3 Id. 419.

Mr. Justice MERCUR delivered the opinion of the court, May 6th 1878.

This suit was brought by defendant in error to recover damages for the death of his son, Alexander Jones. He was killed by an explosion of gas, in the colliery of the plaintiff in error, known as the "Exeter Shaft," and while in the employ of the company. It is claimed that the explosion was caused by an insufficient supply of fresh air.

This mine was ventilated by the method usually practised in the coal fields of Wyoming. It is by drawing the air through an inlet called a "down-cast" into the mine, and having passed it through the mine, then up and out by what is called the "up-cast," which is near the shaft. The movement of the air is effected by means of a "suction-fan." It creates a vacuum, and that vacuum is filled by the natural pressure of the atmosphere, thereby creating a continuous current. A current of fresh air is thus drawn in, and thrown out, and the gas passes out with it. The fan is a wheel of about twenty feet in diameter, having paddles thereon of about six feet in width. Its effectiveness depends on the rapidity of its revolution. The quantity of fresh air necessary to be passed through the mine depends on the number of men employed therein. The 7th section of the Act of 3d March 1870, Purd. Dig. 1069, pl. 7, declares that in every mine or colliery, an adequate amount of ventilation shall be provided, "of not less than fifty-five cubic feet per second of pure air, or thirty-three hundred feet per minute, for every fifty men at work in such mine, and as much more as circumstances may require." The defendant in error proved by James Bryden, that the fan in use at the time of this accident, was of sufficient capacity, when driven, to thoroughly ventilate the mine, and that from thirty-five to forty revolutions a minute would secure perfect ventilation, also that at about forty revolutions a minute, the cubic contents of the ventilation, would be about sixty thousand feet per minute. At the time of the accident there were only twenty-nine or thirty men at work in the mines. Hence the ventilation at forty revolutions per minute, would be thirty times greater than the statute required. No witness testified that the fan was either defective in construction, or insufficient in capacity to properly ventilate the mine. The complaint was that the revolution of the fan was so lessened, that it did not remove the noxious gases, and the explosion therefore resulted. It appears that some days prior to the explosion, all general work in the mine had been stopped. Most of the three hundred persons or thereabouts, who had been at work, were discharged. Some thirty only were retained. They were engaged in making some improvements and repairs in the mine, which could not well be done when it was in full operation. Alexander Jones was one of these men. They were at work near the foot of the shaft, and so near the current of air as to be annoyed thereby. They complained to Mr. Reese, the "mine boss," that this large volume of air made it difficult for them to work. At their request the fan was "slowed down." The natural effect of this would be to check the removal of the carburetted hydrogen, and therefore to permit more of it to remain in the mine.

Jones's body was found in a side chamber, inside of a door shutting off that gangway from the one in which the men were at work, and a few hundred feet from them. Whether any duty called him into that gangway does not clearly appear. The marks of burning found on his person would indicate that his lamp caused the explosion; but the jury has found that he was not guilty of any contributory negligence. The main question now presented for our consideration is whether there was any evidence of negligence for which the plaintiff in error is liable ? It is claimed...