Vagaszki v. Consolidation Coal Co., Inc.

• Citation: 225 F. 913
• Decision Date: 16 August 1915
• Docket Number: 280.
• Parties: VAGASZKI v. CONSOLIDATION COAL CO., Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

225 F. 913

VAGASZKI v. CONSOLIDATION COAL CO., Inc.

No. 280.

United States Court of Appeals, Second Circuit.

August 16, 1915

[Copyrighted Material Omitted]

L. B Treadwell, of New York City (L. B. Treadwell, Roger Foster and R. W. Darling, all of New York City, of counsel), for plaintiff in error.

Davies, Auerbach & Cornell, of New York City (Charles H. Tuttle, of New York City, Charles F. Uhl, Jr., of Somerset, Pa., and Martin A. Schenck, of New York City, of counsel), for defendant in error.

Before LACOMBE, COXE, and ROGERS, Circuit Judges.

ROGERS Circuit Judge.

This action was brought to recover damages in the sum of $30,000 for the death, on August 25, 1913, of George Vagaszki. At the time of his death he was 29 years of age, and was employed as a miner in a bituminous coal mine belonging to the defendant, and located at Jenner, in Somerset county, state of Pennsylvania. His death occurred while he was at work in mine No. 119, butt heading No. 8, second right, and was caused by a mass of rock which became detached from the roof of the heading, which struck and crushed him. There was no one with him at the time, and no one witnessed what occurred. The action is brought by the widow. The Constitution of the state of Pennsylvania provides that in case of death from injuries the cause of action shall survive, and that no act of the General Assembly shall limit the amount to be recovered in such cases. An act passed in that state in 1855, still in force, provides that the persons entitled to recover damages for any injury causing death shall be the husband, widow, children, or parents of the deceased, and that the sum recovered shall go to them in the proportion they would take his or her personal estate in the case of intestacy, and that without liability to creditors; the law of Pennsylvania on the subject being similar in import and character to the law of New York in that regard.

The action is brought by the widow of the deceased for the benefit of herself and a son of the age of six years. The theory of the action is that it was the duty of the defendant to keep the heading in the mine in which the deceased was at work in a safe and secure condition, and to properly inspect the same, and to support the roof with sufficient timbers or other suitable means; that instead of performing its duty it negligently permitted the place to be and remain in an unsafe, dangerous, and insecure condition, although its condition might have been discovered and ascertained by a proper inspection thereof; and it is averred that there was no negligence or want of care on the part of the deceased contributing to his death. The case was submitted to the jury, and a verdict was returned in favor of the defendant.

The courts of the United States take judicial notice of the statutes and judicial opinions of any state in the Union without plea or proof. See Lamar v. Micou, 114 U.S. 218, 5 Sup.Ct. 857, 29 L.Ed. 94. This case is governed by the Bituminous Mining Act of Pennsylvania, passed in 1893 and re-enacted in 1911, with some minor changes. The act places the management of the inner workings of a bituminous coal mine in the hands of a certified mine foreman, whose qualifications are determined by the state. Neither he nor the assistants whom he appoints are agents of the mining company; and the company is not responsible for their acts, unless it has notice that an emergency of danger has arisen demanding immediate action, and that these officials are not discharging their duties with regard thereto. The mining company is also responsible if it has failed to comply with the orders of the mine foreman. The following provisions of the act are important in determining the question involved in this case:

Article 3, section 1:

'It shall be the duty of every superintendent, on behalf and at the expense of the operator, to keep on hand at each mine at all times a sufficient quantity of all materials and supplies required to preserve the health and safety of the employes, as ordered by the mine foreman and required by this act. If for any reason the superintendent cannot procure the necessary materials or supplies as aforesaid, he shall at once notify the mine foreman, whose duty it shall be to withdraw the men from the mine or portion of mine, until such materials or supplies are received. The superintendent shall, at least once every week, read, examine carefully, and countersign all reports entered in the mine record book by the mine foreman, and if he finds on such examination that the law is being violated in any particular, he shall order the mine foreman to stop said violation forthwith, and shall see that his order is complied with.'

Section 2:

'The superintendent shall not obstruct the mine foreman or other officials in the fulfillment of any of their duties as required by this act, but he shall direct that the mine foreman and all the other employes under him comply with the law in all its provisions, especially when his attention is called by the inspector to any violation of the law. At any mine where a superintendent is not employed, the duties that are herein prescribed for the superintendent shall devolve upon the mine foreman, in addition to his regular duties.'

Article 4, section 1, provides that:

'The mine foreman shall have full charge of all the inside workings and of the persons employed therein, in order that all the provisions of this act so far as they relate to his duties shall be complied with, and the regulations prescribed for each class of workmen under his charge carried out in the strictest manner possible.'

The section also gives the mine foreman authority to appoint assistants when the workings are so extensive that he is unable personally to carry out the requirements of the act.

Article 4, section 6, provides that:

'The mine foreman shall direct and see that every working place is properly secured by props or timbers, and shall see that no person is directed or permitted to work in an unsafe place, unless it be for the purpose of making it safe. He shall also see that the workmen are provided with sufficient props, cap-pieces, and timbers of suitable size.'

Section 7 provides:

'Every workman in need of props, cap-pieces, and timbers shall notify the mine foreman or the assistant mine foreman (or any other person delegated by the mine foreman) of the fact, at least one day in advance, giving the number, size, and length of props, cap-pieces, and timbers required. In case of emergency, the timber may be ordered immediately upon the discovery of danger. If for any reason the necessary timbers cannot be supplied when required, the mine foreman or assistant mine foreman shall instruct the workmen to vacate the place until the timber needed is supplied.' Section 9:

'The mine foreman shall direct and see that as the miners advance in their excavation all dangerous and doubtful pieces of coal, slate, and rock overhead are taken down or at once carefully secured against falling on the workmen. Any workman who neglects to carry out, or disobeys, the instructions of the mine foreman or his assistant in regard to securing his working place, shall be suspended or discharged by the mine foreman.'

Section 10:

'The mine foreman shall give prompt attention to the removal of all dangers reported to him by his assistants, the fire boss, or by any other person working in the mine, and in case it is impracticable to remove the danger at once, he shall notify every person whose safety is menaced thereby to remain away from the portion where the dangerous conditions exist. * * * Instruction shall be given the men by the mine foreman, assistant mine foreman, or fire boss, or other authorized person, as to when, where, and how timber shall be placed so as to avoid accidents from falls, and also, in a general way, how to mine coal with safety to themselves and others.'

Article 25.-- Special Rules.

Duties of Miners.

'Rule 1. The miner shall examine his working place before beginning work, and take down all dangerous slate, or otherwise make it safe by properly timbering it, before commencing to mine or load coal. * * * Should he at any time find his place becoming dangerous from gas or roof or from any unusual condition that may arise, he shall at once cease working and inform the mine foreman or the assistant mine foreman of said danger, but before leaving his place he shall put some plain warning across the entrance thereto to warn others against entering into danger. * * * He shall order all props, cap-pieces, and all other timbers necessary, at least one day in advance of needing them, as provided for in the rules of the mine. If he fails to receive said timbers, and finds his place unsafe, he shall vacate it until the necessary timbers are supplied. * * * The miner shall remain during working hours in the working place assigned to him by the mine foreman or the assistant mine foreman, and he shall not leave his working place for another working place without the permission of the mine foreman, assistant mine foreman, or fire boss, and he shall not wander about the hauling roads or enter abandoned or idle workings.'

General rules:

'Rule 7. All employes shall notify the mine foreman or the assistant mine foreman of the unsafe condition of any working place, * * * when said conditions are known to them.'

Act June 9, 1911 (P.L. 756).

As this court is bound by the construction given to this act by the courts of Pennsylvania, we call attention to the decisions of the Supreme Court of that state for the purpose of showing that the mine foreman is the representative of the state and not of the mineowner, and that the latter, as already indicated, is not liable for injuries which result...