Lehigh & Wilkes-Barre Coal Co. v. Sawickas

• Decision Date: 13 November 1917
• Docket Number: 43.
• Parties: LEHIGH & WILKES-BARRE COAL CO. v. SAWICKAS.
• Court: U.S. Court of Appeals — Second Circuit

247 F. 432

LEHIGH & WILKES-BARRE COAL CO. v. SAWICKAS.

No. 43.

United States Court of Appeals, Second Circuit.

November 13, 1917

One who holds himself out as skilled in a trade, and thereby procures employment, cannot hold his employer liable for failure to instruct him in a matter he must be assumed to know in order successfully to pursue that trade.

Sawickas was a miner in the employ of the Coal Company, and while so employed, and in Pennsylvania, received serious personal injuries by the premature explosion of a blast, which he was preparing with the assistance of his workman or helper. This suit is to recover damages for such injuries. The explosion killed the helper, and no other person was very near when the accident happened, wherefore Sawickas' evidence as to occurrences preceding explosion is the only direct testimony thereupon. By that evidence he was, when injured, 26 years old, had worked in the same mine 6 years, nearly 3 as a laborer or helper, and over 3 as a certified miner, i.e., a person examined by state authority, and given a certificate as qualified to be a miner in 'any anthracite coal mine' in Pennsylvania. It was unlawful to employ as a miner any uncertified person. Act Pa. June 2, 1891.

He owned his own tools, and could get them where he chose though as matter of fact he had procured them all at the company's store. He had fired thousands of blasts before this accident. For the charge that injured him he and his helper bored a hole some six feet deep, prepared a powder cartridge, put it in the hole with fuse attached, as far as possible by hand, and then shoved it back (so as to plant the cartridge at the bottom of the hole) with a steel tamping bar, thus bringing the metal bar end in contact with the powder cartridge, and not with a wad of dirt or other nonexplosive. While so shoving back the cartridge, it exploded, throwing down considerable coal, but also blowing out of the untamped blast hole flame and burning powder.

The coal vein on which the injured men were working contains some hard rock, locally known as 'sulphur.' This Sawickas had long known, and he bored through or past some of it in preparing the blast hole which prematurely fired. He had heard that a blow with steel on 'sulphur' would produce sparks, but had never seen it himself. The blast that injured him he was preparing in his usual way, a method he had learned from the miners with whom he had worked before getting his certificate; nor had he ever at any time been instructed or warned that it was dangerous. His entire mining experience had been obtained in defendant's mine.

The Pennsylvania Mining Act (Act June 2, 1891 (P.L. 196)), above referred to, authorizes the following statutory rule '(30) In charging holes for blasting in slate or rock in any mine, no iron or steel pointed needle shall be used, and a tight cartridge shall not be rammed into a hole in coal slate or rock with an iron or steel tamping bar, unless the end of the tamping bar is tipped with at least six inches of copper, or other soft metal.'

Sawickas had no tamping bar with a copper or other soft metal end, nor had any one ever ordered or recommended that he get one. The cartridge that exploded was, however, not tight, and the blast hole was damp.

Another statutory rule (54) requires that an abstract of said rules and statute 'shall be posted up in legible characters in some conspicuous place or places at or near' every mine. Plaintiff testified that he had never seen anything of the kind; there was abundant evidence that such posting had been effected at two places near the mine, necessarily frequented by every miner.

The assignments of error substantially challenge the refusal of the trial judge to direct a verdict for defendant.

De Forest Bros. and Gomer H. Rees, both of New York City (Nathan A. Smyth, Gomer H. Rees, and Leslie Reid, all of New York City, of counsel), for plaintiff in error.

Baltrus S. Yankaus, of New York City (Albert Massey, of New York City, of counsel), for defendant in error.

Before WARD and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

HOUGH Circuit Judge (after stating the facts as above).

We assume the facts to be as related by the plaintiff below. The action as brought depended, not only upon general rules of law, but on the Employers' Liability Act and mining statutes of Pennsylvania. Of these statutes it is enough to say that none of them makes of the employer or mine owner an insurer. Plaintiff was obliged to prove affirmatively as a prerequisite for recovery that defendant below had been guilty of some actionable negligence.

The complaint herein was supplemented by a bill of particulars, and on turning to that document, to ascertain the sort or kind of negligence of which defendant complains, we find but one allegation which, in the light of Sawickas' own story, needs consideration. The bill asserts in a variety of ways that it was negligent to permit, and not to prevent, plaintiff below from using an iron or steel tamping bar without a copper or other soft metal head.

Assuming for argument's sake that any such duty lay upon the defendant below, it is still necessary to find some causal connection between the use of an uncapped tamper and the explosion producing injury. The plaintiff's theory (and the word is used advisedly) is that the steel tamper must have struck 'sulphur,' thereby produced a spark, which spark ignited the cartridge and caused the explosion, and that this train of circumstances happened in a damp hole, and had never anywhere happened before to the knowledge of plaintiff, or (it may be added) of any one else who testified herein.

But let it be assumed that the plaintiff below was injured because he was putting in a blast in an improper manner, and especially with an improper tool, that in so doing he did strike a spark, and as a consequence thereof received the injury complained of. He was a certified miner, not only a proper person, but the only kind of person lawfully authorized to do the work he was doing. He had been used to this labor for years, and if it be true that sparks may be produced from damp rock by blows from a steel tamper, he for years had had opportunity of learning the truth about the matter, larger than that of all except other miners. Knowledge of such dangers was part of a miner's equipment for his work, and to ascertain and remember the fact required nothing but ordinary judgment and common observation.

A master is not bound to warn a servant of dangers so patent as to be readily observed by the reasonable use of the senses considering the age, intelligence, and experience of the observer. Chicago, etc., Co. v. Shalstrom, 195 F. 725, 115 C.C.A. 515, 45 L.R.A.(N.S.) 387; King v. Morgan, 109 F. 446, 48 C.C.A. 507; Lindsay v. New York, etc., Co., 112 F. 384, 50 C.C.A....