Waddell v. Simoson

• Decision Date: 10 May 1886
• Docket Number: 332
• Citation: 112 Pa. 567,4 A. 725
• Parties: Waddell & Walter v. Simoson & Wife
• Court: Pennsylvania Supreme Court

4 A. 725

112 Pa. 567

Waddell & Walter v. Simoson & Wife

No. 332

Supreme Court of Pennsylvania

May 10, 1886

Argued April 14, 1886

ERROR to the Court of Common Pleas of Luzerne county: Of January Term, 1886, No. 332.

This was an action on the case by Morris Simoson and Emma O Simoson, his wife, against Thomas Waddell and J. Frank Walter, doing business as Waddell & Walter, to recover damages for the death of their son, W. T. S. Simoson, caused by the alleged negligence of the said defendants.

Plea not guilty.

The following are the facts of the case as they appeared on the trial before RICE, P.J.:

In 1882 the then firm of Waddell & Walter were operating certain collieries in Luzerne county, one of which included the mine where the accident occurred by which W. T. S. Simoson, a son of the plaintiff, lost his life. This colliery embraced one mine worked by a shaft, up which the coal was brought to the breaker, and another, worked by a tunnel or drift in the side of the hill; the coal being taken over a trestle to the same breaker. The two mines were entirely distinct and separate and there was no connection between them. James Waddel was the general superintendent of the defendants' collieries William Wallace was the inside foreman or mining boss of the mine operated by the shaft, and James Gallagher the inside foreman or mining boss of the other mines; John Schlager was the boss of the breaker, through which the coal from both mines passed.

Morris Simoson was an old miner and familiar with the manner and character of mining operations in that vicinity. His son, Wm. T. S. Simoson, was twelve years old in July, 1882; he had worked in the mines before his employment by the defendants. He was employed by them in the last of July, 1882, as a slate-picker. He was a stout lad, tall for his age, being five feet, one inch in height, weighing about one hundred and ten pounds, and appearing to be fifteen or sixteen years of age. He was afterwards employed to "sprag" the cars at the head of the breaker. After that he applied to Gallagher, the inside foreman at the drift, for a place as driver boy, and such place being then vacant, was given to him. He had previously driven in the other mine. He began driving in the mine in which Gallagher was foreman about October 1st, 1882. On November 3d, 1882, he was killed by a fall of a "slip" or "fault" from the roof of the gangway at the edge of a breast. The negligence complained of was that the gangway -- taken in connection with the width of the breasts opening out from it on both sides -- was too wide to be safe without artificial supports or "proppings."

All the witnesses agreed that the "slip" or fault in the rock which fell, could not be discovered except by sounding the roof, and that what came down was merely this slip,' which lay in the solid rock that formed the roof, seventeen to eighteen inches in its thickest part and running down to an invisible or "feather edge" at the side of the gangway. This gangway was eight feet high at the lower side and nine at the upper side. It was a counter-gangway, driven across the upper face of the breasts, opened up from a lower gangway, and from it other breasts had been opened and were being opened on the upper side.

It was started by Gallagher, the inside foreman, whose reputation for skill and care was not attacked or questioned.

He regarded it as perfectly safe. He swore that he did not think props were necessary, and that they would not have prevented the coming down of the slip. That he had sounded the roof and found no indications of anything wrong, and that he had taken every method and precaution known to careful and skilful mining to ascertain the condition of the roof, and that he believed it to be entirely safe.

Clinton Opdyke, who was working in the mine, had sounded the roof with Gallagher and found it entirely safe. He had worked in the mine eight years, and in this gangway since it was opened. John Matthews was working a breast near the place where the "slip" fell. He was in his breast at the time of the fall, and was among the first to get to the place. He thought the place perfectly safe. John Welch had driven the gangway at the place of the accident, and within a week of its occurrence was pushing the same gangway further on. He regarded the condition of the roof as safe.

It was proved that about a week or ten days before the accident, there had been a scale or light fall at the place where the accident afterwards happened. Gallagher then, with Opdyke, examined the roof and reported to James Waddell, the general superintendent, that it was safe. He testified that nothing had been neglected or omitted to be done which ought to have been done to make the place safe. It was also shown that after the fall of the slip the mine was robbed -- that is, more coal taken from the sides and pillars at that place, and that the roof had remained and still remains intact.

The defendant presented, inter alia, the following points:

4. There is no sufficient evidence in the case that the construction of the gangway in which the accident happened was either negligent or defective.

Answer. This point is answered in the negative. There is evidence consisting of the opinions of witnesses that it was not properly constructed, that the distances between the supports were too great. The sufficiency of the evidence is for the jury and not for the court. (First assignment of error.)

5. Even if such construction was defective, the defendants having employed a competent person to drive such gangway, and no notice to them, or knowledge on their part of any defect therein being shown, the plaintiffs cannot recover.

Answer. This is also answered in the negative. (Second assignment of error.)

6. Again even if the gangway or adjacent breasts were constructed of too great a width, yet the plaintiffs cannot recover unless the jury finds that the width of such gangway and breasts caused or materially contributed to the accident.

Answer. This was explained upon the argument, and was amended, as we understood the counsel, to read substantially that the width of the gangway, even if too great, is not material, provided this defect, if it be one, did not cause or contribute to the accident. As thus amended, the point is affirmed. As it stands originally it would have to be negatived, because it leaves out another phase of the case to which we have called your attention. (Third assignment of error.)

8. The only negligence claimed by the plaintiffs being that in a gangway and breasts opening thereon, of the size shown by the map of Mr. Hartwell, it was the duty of the defendants to support the roof by timbers or other appliances, and the uncontradicted evidence being that Gallagher, the mining boss in charge, examined the roof, and found it, in his judgment safe without such support, and so reported it to the general superintendent, the defendants are not responsible either for Gallagher's mistake in judgment or failure to discover the defect in the roof, or to guard against it.

Answer. We decline to charge as requested in that point; it is answered in the negative. (Fourth assignment of error.)

9. That the defendants fulfilled the measure of their duty to their employes if they committed their work to careful and skilful bosses and superintendents who conducted the same to the best of their skill and ability, and if the jury find from the evidence that such was the case and that the defendants had no notice or knowledge of the defective condition of the gangway at the time of the accident, then if the same was unsafe the plaintiffs cannot recover in this suit.

Answer. We decline to charge as requested in this point. If, however, you find the facts to be as stated by the point, and the defendants had no notice or knowledge of the defective condition of the gangway, or did not have their attention called to it, or would not have known it by the exercise of due care, then they would not be liable. The point needs, however, that qualification -- namely, whether or not they ought to have known it by the exercise of due care and prudence. (Fifth assignment of error.)

10. That if the accident can be attributed to negligence or unskilful mining, then under the testimony the want of care was on the part of a co-employe of the deceased, and the plaintiff cannot recover.

Answer. We decline to charge as requested in that point; because in our opinion the facts in the case do not warrant the submission of that point to the jury. (Sixth assignment of error.)

Verdict for the plaintiff in the sum of $1,336.75, and judgment thereon, whereupon the defendants took this writ, assigning for error the answer of the court to their points, as appears above.

The judgment is reversed.

J. V Darling and H. W. Palmer (E. P. Darling with them), for plaintiffs in error. -- 1. The fundamental error, as we conceive it to be, in the treatment of this case by the court below, was the instruction to the jury that the condition of a counter-gangway in a mine was to be regarded as a "structure," which the mine owner or operator was obliged to furnish and maintain in a condition of reasonable safety, as he would a piece of dangerous machinery, such for example as a railroad locomotive, and that for the failure of the mine-boss under the Act of 1870 to support the roof of such gangway by...