Sulin v. Rochester & Pittsburgh Coal & Iron Co.

This is an action for personal injuries sustained by the plaintiff while in the employ of the defendant in a bituminous coal mine in Pennsylvania. The liability of the defendant is regulated by the statutory law of Pennsylvania, as construed by the courts of that state. The statutes and decisions have been sufficiently stated and considered in the opinion in Firment v. Rochester & Pittsburgh Coal & Iron Co., 155 N. Y. Supp. 879 , argued and to be. decided herewith.

[1] In this case, also, the defendant employed a duly certified mine foreman and a superintendent. It has been held liable on the theory that the roof of a heading in the mine was insecurely supported, and that the superintendent had notice of the dangerous condition and of the failure of the mine foreman to perform his duty, and with such notice and knowledge failed to take steps to render the mine safe. The plaintiff was employed as a “spragger.” His duties were in connection with the operation of the cars in the heading, and were principally to throw small blocks of wood, called “sprags,” between the spokes of the wheels to stop the cars, and to throw switches and to couple cars. On the occasion in question, he was riding on the front of an electric motor car, which was pushing a train of 30 cars loaded with coal in one of the headings toward the slope or shaft of the mine, and part of the roof of the heading, consisting of about a cubic yard,"or about a ton in weight, fell upon the tracks at the front end of the train, or between and upon some of the cars near the front end, throwing from 1Ó to 13 cars off the track, causing the plaintiff’s foot to be caught between the bumper on the motor car and the bumper on the car ahead, to which it was coupled, inflicting injuries for which he has recovered.

The testimony of the plaintiff tends to show that, about three or four months prior to the accident, part of the roof of the heading fell in at the same point, and that some of the timbers supporting it also fell; that the mine foreman caused the roof to be propped up again, and the men who did the work used two old, cracked, timbers and one.new timber, which was also somewhat cracked and contained a knot; that he

There is no evidence, however, that the timbers were in a different condition, either before or after the accident, from that in which they were when they were inserted in place to support the roof. Moreover, the uncontroverted testimony of four witnesses called by the defendant shows that the timbers which fell at the time of the accident were sound, and it appears that they were used again after the accident fi> support the roof. The mine foreman, as was his duty under the statute (P. L. Pa. 1911, p. 769, art. 4, § 18), made a daily report with respect to the condition of the mine, and that no dangers had been reported, or, if reported, that they had been remedied. The superintendent was requested -to read and sign these reports weekly. He had, therefore, the certificate of the mine foreman that at the close of each day the mine was in a safe condition. Whatever the condition of the roof of the mine may have been when plaintiff drew the attention of the superintendent to it, these reports informed the superintendent that any dangerous defects that had come to the attention of the mine foreman had been remedied. The only complaint shown to ha.ve been made by plaintiff, however, to the superintendents, was with respect to the timbers. Assuming that the notice to the superintendent was sufficient to charge him with knowledge that these timbers were in the condition described by the plaintiff, there is no evidence that the accident was in any man

[2] There is a conflict between the testimony of the plaintiff and that of the other witnesses with respect to where the material and timbers were with reference to the front' of the train after it stopped at the time of the accident. The plaintiff’s testimony indicates that they were at the front end, and it is argued in his behalf that the cave-in occurred before the train reached the point, and that this threw the cars off the track. The evidence on the part of the defendant tends to show that the front car must have passed the point before the roof caved in, for according to that evidence no material or timber was on the track in front of the train, and the material and timbers fell on the third arid fourth or the fourth and fifth cars. That conflict, however, is not very material, for I am of opinion that the crucial point in the case is whether the defects of which the defendant’s superintendent had notice rendered the timbers unsuitable for the purpose and were of such a character as to charge the superintendent with knowledge that the mine foreman had not performed his duty, and whether those defects were a contributing cause to the caving in of the roof of the heading. The duty to use proper timbers and to install them and their supports in a manner to render the mine safe devolved on the mine foreman, and therefore the defendant should not be held liable, and is not liable under the authorities cited in the other opinion, unless the evidence clearly shows that he failed to perform his duties, and that the superintendent had notice both of the defective condition and of the default of the mine foreman, or of facts and circumstances charging him with notice thereof, for it was not the province of the superintendent to intervene in a case where reasonable men well might differ with respect to the suitableness of the material used in the safety of the mine. See Peters v. Vesta Coal Co. 243 Pa. 241 , 90 Atl. 65 .

I am of opinion that the plaintiff wholly failed tO' bear the burden of proving the facts in this regard, essential to entitle him to recover, and that iri no view of the case is the evidence sufficient to support the verdict. The record does not show that the claim was made upon tire trial that, if these timbers were defective, there was no evidence to show that such defects were a contributing cause to the accident. Although a motion for a nonsuit and for a dismissal of the complaint was made, the exceptions to the denial thereof are not assigned as error. It may be that the broken or cracked condition of the timbers rendered them unsuitable for supporting the roof of the mine, and that they sagged or were not firm in sustaining any weight that came upon them, but that was not shown; and if in any view of the evidence an inference to that effect might be shown, we think the plaintiff has not sustained the burden of proof on that point. I am of opinion, there

It follows that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event. Order filed All concur.