United States Gypsum Co. v. Sliwienska

• Decision Date: 12 December 1910
• Docket Number: 98.
• Citation: 183 F. 688
• Parties: UNITED STATES GYPSUM CO. v. SLIWIENSKA.
• Court: U.S. Court of Appeals — Second Circuit

183 F. 688

UNITED STATES GYPSUM CO. v. SLIWIENSKA.

No. 98.

United States Court of Appeals, Second Circuit.

December 12, 1910

C. B Gibbs, for plaintiff in error.

T. A Sullivan, for defendant in error.

LACOMBE Circuit Judge.

An objection discussed on the briefs to the jurisdiction of the Circuit Court on the ground that the plaintiff, a subject of the emperor of Austria, could not maintain the action in the Western District of New York against defendant, a corporation of New Jersey, was abandoned on the argument. Such objection was a matter of personal privilege, which was waived by defendant's appearing and answering on the merits.

The accident happened through a fall of rock from the roof of a gypsum mine then being operated by defendant; the particular chamber where it occurred being known as 'Big John room.' The character of the roof is succinctly set forth in the following excerpt from the charge:

'The stratum consists of a bed of gypsum, a formation of so-called ash rock, then an upper formation of limestone. When the gypsum is removed the ash rock becomes a menance and a danger to those who are employed in the mine, in that, when the ash rock becomes exposed to the atmosphere or to moisture, it becomes brittle, and is apt to fall down upon the miners, and it is for that reason that props are required to be placed underneath the layer of ash rock in order to keep it in place; and it is for that reason that two rows of props were placed on each side of this rail leading into and out of the chamber called 'Big John."

The chamber was about 40 to 50 feet wide, and through its center there ran a tramway, on a curve. On the day in question it was desired to brush the roof in order to permit the mule to draw the cars in which the debris and the mined material is placed so as to draw it to the shaft to be hoisted to the surface of the mine. It was contended by the plaintiff that orders were also given to straighten the track, shifting it somewhat from its old position, an operation which necessitated the removal of some of the standing props. Engaged in this work were decedent, who was a prop setter, one Julian, also a prop setter, and Dominick a track layer. All these had had experience in such work, and had received general instructions as to the way in which it should be done. The evidence tended to show that it is safer to move the track in small sections, because in that way it would not be necessary to disturb so many standing props. The moving, however, can be done faster if the track be shifted as a whole. Moreover, it was testified that, before any prop is removed to make clearance for the track, another should be set up as near the place from which the prop is removed, as the conditions of the work will permit. On this occasion Dominick, being ready to shift the track, asked the two prop setters to remove some of the props, and himself knocked out one. Julian knocked out another and decedent knocked out two; but in no instance was a new prop set up before the standing one was knocked out. There seems no dispute on the testimony that as a consequence of this careless way of doing the work the rock which killed Sliwienska fell from the roof. If this were all, plaintiff could not recover, because Julian and Dominick were concededly fellow servants of decedent. But there was evidence as to the instructions given by O'Brien, the mine foreman, a 'person intrusted with and exercising superintendence' within the terms of the statute. Julian testified that O'Brien told him that morning, in the presence of deceased, to go to the Big John room to move that track.

'O'Brien says for Frank and me to go to Big John room, knock down props, move the track, and after set up props in a straight line.'

O'Brien flatly denied this. The witness Julian was a foreigner apparently speaking English imperfectly, and his testimony seems not to be especially persuasive, but with such a statement by him in the case it would have been error for the court to take it from the jury. It was for them to decide which statement was truthful. In charging the jury the court reminded them that there was a sharp conflict of testimony on this branch of the case between O'Brien and Julian and instructed them that 'Unless the jury find, by fair preponderance of the evidence, that O'Brien was negligent, plaintiff cannot recover. ' And again:

'If the action is to be determined in favor of the plaintiff, it must be so determined because the foreman O'Brien was negligent, either in failing to give proper instructions to these men as to how the work was to be done, or because he instructed them faultily.'

He also called the jury's attention to the facts that Julian had received some injuries from the falling rock, and had brought a suit himself against defendant, and that O'Brien was still defendant's foreman. We think the controverted question as to specific instructions for the doing of this work was presented to the jury most carefully and with conspicuous fairness, and find no merit in the assignments of error dealing with this branch of the case.

It is further assigned as reversible error that the court submitted to the jury, as a question of fact, whether the place where the accident occurred was reasonably safe when the work commenced, and that it declined to charge that it was a reasonably safe place at that time. The record of what took place from the beginning of the charge to the close of the case does not sustain this assignment. Besides the instructions given in the excerpts already quoted, the court, after referring to the fact that there were a number of charges of negligence asserted in the complaint, stated that:

'At the close of the case reliance is finally placed upon the assertion that defendant was negligent in that it failed to properly and adequately inspect this mine, and, further, that the foreman, O'Brien, failed or omitted to give proper and sufficient instructions to the employe Julian and the deceased as to the manner in which this track should be shifted, and, in fact, by negligently instructing them on this morning in question to go into the Big John chamber to shift this track and to first to take down the props. Now, it is to those two questions, I think, that plaintiff directs your attention.'

Elsewhere in the charge the court stated the general rule as to the master's obligation to furnish a reasonably safe place in which to work, pointing out that it was the position of defendant that this Big John chamber was reasonably safe on the morning the work began, and that, if it became unsafe, it was due to the faulty manner in which decedent and his associates performed their work. When the time came for either side to state objections to the charge, it was suggested that there was being submitted to the jury questions as to the reasonable safety of the place when the work commenced and as to failure to inspect. After some discussion, the court finally charged the jury that:

'Before pla

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