Pittsburgh Coal Co. v. Myers

• Decision Date: 25 February 1913
• Docket Number: 1,635.
• Citation: 203 F. 221
• Parties: PITTSBURGH COAL CO. v. MYERS.
• Court: U.S. Court of Appeals — Third Circuit

203 F. 221

PITTSBURGH COAL CO. v. MYERS.

No. 1,635.

United States Court of Appeals, Third Circuit.

February 25, 1913

Rehearing Denied April 11, 1913.

Charles M. Johnson, Don Rose, Obed K. Price, and John H. Scott, all of Pittsburgh, Pa., for plaintiff in error.

Frank H. Kennedy and C. K. Robinson, both of Pittsburgh, Pa., for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

J. B McPHERSON, Circuit Judge.

In this action the plaintiff, Annie Myers, seeks to recover damages from the Pittsburgh Coal Company for the death of her husband. For several months at least he had been employed as a 'snapper,' or brakeman, in underground operations and at the time of his death he was taking part in the movement of empty cars from one point to another in a mine belonging to the defendant. The fact of a servant's death raises no presumption of his master's negligence. Such negligence must be shown affirmatively, and must be shown also to be the proximate cause of the death. In our opinion the present case is fatally defective in both these essentials, and for this reason the verdict in the plaintiff's favor cannot be sustained.

What is known about the accident will appear in the following summary: On September 20, 1910, a train of more than 30 empty coal cars, each of two tons' capacity, was drawn into the mine upon the main track by an electric motor. As the train approached a junction from which a sidetrack led off into one of the galleries or traveling-ways, the motor executed the maneuver known as a 'flying switch'; that is, the motor increased its speed, separated from the cars, and continued to run upon the main track past the junction, while the switch at that point was quickly opened and the cars left the main track and ran into the siding by their own momentum at a diminishing rate of speed-- on this occasion, not much if any, faster than a walk. While they were thus moving the motor ran back, followed the cars into the siding, and finally overtook them several hundred yards beyond the mouth of the mine. But, a short distance before it overtook them, the motor ran over something on the rail, and this was afterwards found to be the body of the deceased. When the cars left the junction and started down the siding, he was alive, on, or inside, the rear car, and a driver's lamp (giving more light than a miner's lamp) was burning in his cap. The cap, with the lamp upright and still burning, was found upon the floor of the gallery by the side of the track near the point where the body lay. In the immediate neighborhood was a second switch leading to No. 9 face, one of the mine workings where some of the cars were to be placed, and in aid of this movement it would have been his duty to turn the switch. Here also the trolley wire crossed the gallery from the left side to the right at a height of about five feet eight inches above the rails. A man standing on a passing car would not clear it. The wire was copper and of ordinary construction. Whether it was carrying a current depended on the position of an automatic device situated about 150 feet down the siding from the main track. After the motor (running alone) had entered the siding and had passed this device, the motorman found that the current had ceased, and thereupon he stopped, descended, went back, and adjusted the device, so that the current began again to flow. The strength of the current was about 500 volts, and this will certainly produced a severe shock, although in a given instance it may or may not be strong enough to kill. There was no stationary light at the second switch leading into No. 9 face, and the headlight of the motor, owing to ineffective carbons, was not burning except by intermittent flashes. The motorman had a lamp in his cap, but he was on the rear of the motor, and the lamp did not light the track in front. It was too dark to see ahead, and the body on the track was not observed until after it had been crushed by the front end of the motor. The deceased was a young man in good health, was accustomed to the work of a brakeman, had helped to put up the wires for the electric traction system, and had passed along this gallery perhaps 10 times a day for several months. He had often got off at the second switch, and turned it so that cars could pass through. On this occasion he was in the rear car, or on the bumper, as the train moved into the siding, and...