Riley v. Pittston Coal Min. Co.

• Decision Date: 17 May 1909
• Citation: 224 Pa. 633
• Parties: Riley, Appellant, <I>v.</I> Pittston Coal Mining Company.
• Court: Pennsylvania Supreme Court

224 Pa. 633

Riley, Appellant,v.

Pittston Coal Mining Company.

Supreme Court of Pennsylvania.

April 12, 1909.

May 17, 1909.

Argued April 12, 1909.

Appeal, No. 306, Jan. T., 1908, by plaintiffs, from order of C. P. Luzerne Co., May T., 1906, No. 359, refusing to take off nonsuit in case of Francis Riley, by his next friend and father, Anthony Riley, and said Anthony Riley in his own right v. The Pittston Coal Mining Company.

Before MITCHELL, C. J., FELL, BROWN, POTTER and ELKIN, JJ. Affirmed.

Thomas F. Farrell, with him James L. Lenahan, for appellants. —The proof is that the plaintiff, at the time he fell under the wheel, was not actually engaged in oiling the machinery, but was walking around from one oil box to the other. The prohibition of the statute applies only to the actual act of oiling while the machinery is in motion.

We maintain that the proximate and sole efficient cause of this accident was the presence of the piece of sheet-iron upon which plaintiff slipped, which was negligently erected and maintained by defendant in proximity to the machinery in which plaintiff was injured. Plaintiff's alleged violation of the statute by oiling the machinery while in motion, and his presence about the machinery for that purpose, was only the condition that made the accident possible; it merely furnished the occasion of the accident, but was not the cause of it and in no way contributed to it as a cause: Farley v. Charleston Basket, etc., Co., 51 S. C. 222 (28 S. E. Repr. 193); Baughman v. Railroad Co., 92 Pa. 335; Railway Co. v. Boudrou, 92 Pa. 475; Creed v. Railroad Co., 86 Pa. 139; Artherholt v. Motor Co., 27 Pa. Superior Ct. 141; Sharrer v. Paxson, 171 Pa. 26; Gray v. Scott, 66 Pa. 345; Besecker v. Railroad Co., 220 Pa. 507; McCabe v. Philadelphia, 217 Pa. 140; Gannon v. Wilson, 18 W. N. C. 7; Hollis v. Widener, 221 Pa. 72.

The parts of the machinery oiled by the plaintiff in this case were not "dangerous parts" in contemplation of the statute and it was at least for the jury to say whether the machinery and the act of oiling it were of such a dangerous character as to convict plaintiff of contributory negligence: Kay v. Fredrigal, 3 Pa. 221; Carn v. Fillman, 10 W. N. C. 152; Lenahan v. Coal Mining Co., 12 L. R. A. (N. S.) 463; Gallenkamp v. Garvin Machine Co., 179 N. Y. 588 (72 N. E. Repr. 1142); Sullivan v. Cordage Co., 222 Pa. 40; Stehle v. Machine Co., 220 Pa. 617; Coolbroth v. Penna. R. R. Co., 209 Pa. 433; Ryan v. Ardis, 190 Pa. 66; Merriman v. Phillipsburg Boro., 158 Pa. 78.

Benjamin R. Jones, with him Lawrence B. Jones, for appellee. —The lower court held, and very properly, that even though defendant were negligent in the matter alleged, the plaintiff's negligence in oiling this machinery while it was in motion, in violation of the statute, was contributory, and prevented recovery: Lenahan v. Pittston Coal Mining Co., 218 Pa. 311; Best v. Staple Co., 218 Pa. 202.

Both the first and second declarations contain admissions that the machinery in question is dangerous, and such admissions may properly be taken as the statement of the plaintiff himself that the fact is so: 1 Greenleaf on Evidence, sec. 171; Truby v. Seybert, 12 Pa. 101; Frost v. Hirsch, 16 Pa. Dist. Rep. 831.

OPINION BY MR. JUSTICE BROWN, May 17, 1909:

Appellant was employed by the appellee to oil its machinery in connection with a conveyor or scraper-line used to convey culm to a washery. On September 15, 1905, when he was in his seventeenth year, he sustained the injuries for which he seeks compensation in this action. The accident occurred when he was alongside of the machinery for the purpose of oiling it while it was in motion. A nonsuit was directed on what the court below properly regarded as his contributory negligence in view of his disregard and violation of the Act of June 2, 1891, P. L. 176, which provides for the health and safety of persons employed in and about the anthracite coal mines. By sec. 8 of art. 5 of that act it is directed that no person under fifteen years of age shall be employed to oil machinery and no person shall oil dangerous parts of it while it is in motion. The circumstances under which the appellant was injured appear from the following extracts from his testimony: "I started out to oil the breaker half-past eight, eight o'clock I guess it was, and I walked to that scraper-line and oiled one box and went to walk across to the other. Q. What did you do when you went to the box? A. I stood there and oiled it, then I went to walk across to oil the other box and there was a piece of sheet-iron run out from under; was covered with culm dirt. I walked across, slipped on the sheet-iron, slipped in. I catched hold of the sheet-iron, pulled it in with me and it bent in a loop and the scraper-line broke. . . . Q. What happened when you were drawn in? A. After I was drawn in, the scraper-line broke. Q. How far were you drawn in? A. Up to my shoulders. Q. When you were drawn in, where were you squeezed, between the paddles and what? A. Between the paddles...