Lenahan v. Pittston Coal Mining Co.
| Decision Date | 20 May 1907 |
| Docket Number | 96 |
| Citation | 67 A. 642,218 Pa. 311 |
| Parties | Lenahan, Appellant, v. Pittston Coal Mining Company |
| Court | Pennsylvania Supreme Court |
Argued April 16, 1907
Appeal, No. 96, Jan. T., 1907, by plaintiff, from order of C.P. Luzerne Co., Oct. T., 1904, No. 774, refusing to take off nonsuit in case of Margaret Lenahan v. The Pittston Coal Mining Company. Reversed.
Trespass to recover damages for death of plaintiff's son. Before HALSEY, J.
The opinion of the Supreme Court states the case.
Error assigned was refusal to take off nonsuit.
Judgment reversed and a venire facias de novo awarded.
Thomas F. Farrell, with him Edward A. Lynch, for appellant. -- An employee, aged fourteen, is not guilty of contributory negligence, as a matter of law, in using his employer's premises in a manner not in accordance with instructions, but permitted by the employer without objection: Penna. Coal Company v. Nee, 13 A. Repr. 841; Rummell v Dilworth, 111 Pa. 343; Dowling v. Allen, 74 Mo. 13.
We cannot find that this section has ever before been construed in any case in this state, but almost identical provisions have been before the courts of other states, and the courts have uniformly held that under them employees under the ages prescribed by the statute, cannot be charged with contributory negligence, as a matter of law: Marino v. Lehmaier, 173 N.Y. 530 (66 N.E. Repr. 572); Dragotto v. Plunkett, 99 N.Y. Supplement, 361; Sterling v. Union Carbide Co., 142 Mich. 284 (105 N.W. 755); Hall v. West & Slade Mill Co., 39 Wash. 447 (81 Pac. Repr. 915); American Car & Foundry Co. v. Armentraut, 214 Ill. 509 (73 N.E. Repr. 766).
Benjamin R. Jones, with him Lawrence B. Jones and Henry A. Fuller, for appellee. -- Munley having been guilty of negligence that contributed to his death, plaintiff cannot recover, even though it were shown that the defendant failed to comply with the mine law in the matters alleged: Schlemmer v. Railway Co., 207 Pa. 198; Christner v. Coal Co., 146 Pa. 67; Belles v. Jackson, 4 Pa. Dist. Rep. 194.
The doctrine established by the great weight of authority is that a servant, who is seeking indemnity for injuries alleged to have resulted from a breach of a statutory duty, cannot recover, if the evidence shows that he was himself wanting in ordinary care, and that he contributed by the carelessness to the injuries complained of: Labatt on Master & Servant, sec. 651; 4 Thompson on Negligence, sec. 4,622; McDonald v. Rockhill Iron & Coal Co., 135 Pa. 1; Cleveland, etc., Ry. Co. v. Baker, 91 Fed. Repr. 224.
It is a rule of law that the "common law is not to be repealed by anything less than express enactment or unavoidable implication:" Foster v. Com., 8 W. & S. 77; Borland v. Nichols, 12 Pa. 38; Smith v. Railroad Co., 182 Pa. 139; Pettit v. Fretz, 33 Pa. 118; Endlich, Int. of Statutes, sec. 127; Hickory Tree Road Case, 43 Pa. 139; Schott v. Harvey, 105 Pa. 222.
Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER and ELKIN, JJ.
When this case again comes up for trial in the court below much will depend upon the exact duties which the boy, Munley, was required to perform by the appellee company. If it was a part of his duties to oil the "scraper line," as is the contention of appellant, the negligence of the appellee would be established; if, on the other hand, as is asserted by appellee, it was no part of his duty to oil the "scraper line," the rule relied on by the court below would control the case.
The Act of June 2, 1891, P.L. 176, which, as its title declares, was intended to protect the health and safety of persons employed in and about the anthracite coal mines of Pennsylvania and to preserve the property connected therewith, provides, section eight, that "no person under fifteen years of age shall be appointed to oil the machinery and no person shall oil dangerous parts of such machinery while it is in motion." The boy, Munley, was fourteen years, four months and three days old at the time the accident occurred. At the trial the learned court below directed a compulsory nonsuit to be entered, which, on motion made, he refused to take off on the ground that the boy was guilty of contributory negligence in attempting to oil...
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