Delaware & Hudson Canal Co. v. Carroll

Mr. Justice Paxson, delivered the opinion of the court, May 7th 1879. This was an action on the case brought by the widow and minor children of John Carroll, deceased, against the Delaware and Hudson Canal Company, to recover compensation for injuries to the said John Carroll, resulting in his death. We are unable to say that the court below erred in its charge to the jury, as contained in the first specification, that the action was brought under the provisions of the Act of Assembly, passed March 3d 1870, entitled, “An act to provide for the health and safety of persons and property in coal "mines.” The declaration is not given, but wre infer from the points submitted, the charge of the court, and the manner in. which the case was tried, that the action was under the Act of 1870. The plaintiffs below evidently so regarded it, and it is no hardship to them to dispose of the case upon that theory. Assuming then that the action was so brought, what are the responsibilities of the defendants under the act V The 24th sect, thereof provides (see Pamph. L. 1870, p. 12,) that “ For any injury to person or property occasioned by any violation of this act, or any wilful failure to comply with its provisions by any owner, lessee, or operator of any coal mine or opening, a right of action shall accrue to the party injured for any direct damages he may have sustained thereby; and in case of loss of life by reason of such violation or wilful failure aforesaid, a right of action shall accrue to the widow and lineal heirs of the person whose life shall be lost, for like recovery of damages for the injury they shall have sustained.” The duties enjoined by said act, so far as they relate to this case, are contained in the eighth section, which provides that “ the owner or agent, as the case may be, in charge of every coal mine or colliery, shall employ a competent and practical inside overseer, to be called a mining-boss,” &c. The section then goes on at considerable length to define the duties of the mining-boss, which are in brief to keep a careful watch over the ventilating apparatus, and examine daily the working of all mines generating explosive gases, and to see that they are in a safe condition before the men enter them in the morning, &c., for the better protection [381] of the workmen from danger. The defendants employed one John P. Moore as their mining-boss, who was in charge of the works at the time the accident occurred by which Carroll lost his life. The contention of the plaintiffs is that Moore, the mining-boss, and James McDonald, his assistant, were guilty of negligence, and that such negligence was the cause of the injuries which resulted in Carroll's death; and that the defendants are liable in this action for such negligence. It is too plain for argument that if the defendants have not violated said act they are not responsible. In what respect have they transgressed its provisions ? They employed a mining-boss, as required by the act, and there is no allegation that he was not a competent and practical man. No attempt was made to show that the defendants were guilty of negligence in employing a mining-boss; that they employed an incompetent man knowing him to be so, or employed him without knowledge of his capacity or fitness, or without making such inquiry as to his qualifications, as a man of ordinary prudence would do. The defendants having placed a mining-boss in charge of the works are not in-default. Much less have they been guilty of a violation of the act, which is the ground and the only ground upon which a recovery can be had. The negligence of the mining-boss, if it exists, might make him liable to the plaintiffs; it certainly cannot render the defendants liable under this Act of Assembly. We think, therefore, there was error in those portions of the ■ charge contained in the second, third and fourth specifications. The fifth and sixth and seventh specifications are not sustained. The objection to joining the minor children as co-plaintiffs with the widow, notwithstanding more than a year had elapsed since suit brought, is purely technical, and without merit. The action was commenced by the widow within one year from the time the injm-y occurred. Bringing in the children subsequently by amendment, introduced no new cause of action, and worked no injury to any one, even if the suit were brought under the Act of 1855. The aforesaid Act of 3d March 1870, contains no provision limiting the time within which suit must be brought for a violation of its provisions. In regard to the seventh specification, it is sufficient to say that we do not think the court was required to say under the evidence that Carroll was guilty of contributory negligence. It remains to consider the eighth specification, which refers to the defendants’s sixth point. The learned judge negatived it both in his general charge and in his answer. We think it was error to decline the point whether we regard this action as brought under the Act of 1870 or 1855. If under the former the defendants are not responsible for the negligence of the mining-boss, as has already been stated; if under the latter, the plaintiffs are met with the difficulty that the mining-boss was á co-employee of the [382] deceased. There is no room for the allegation that a mining-boss under the Mine Ventilation Act of 1870 is an agent of the mine owner or a co-employer. He is clothed with no powers of engaging and discharging miners and laborers at pleasure. He is merely a fellow servant with the miner. He is nowhere in the act designated as the agent of the owner of the mines. His duties are specified in the same manner that the duties of the engineer are specified in the 16th sect., and as the duties of other employees are defined in various other sections. He has no general power of control. His duties are confined to special matters. That they are different from those of others of his fellow co-laborers, or even' that they are of a higher grade does not matter: Caldwell v. Brown, 3 P. F. Smith 453; Wright v. N. Y. Central Railroad Co., 25 N. Y. 565 ; Morgan v. Vale of Neath Railroad Co., Law Rep. 1 Q. B. 149. This view is not in conflict with Mullan v. The Steamship Co., 28 P. F. Smith 25. There the hands employed were under the charge of John Corcoran, the chief stevedore. He engaged and discharged them at pleasure. Under the evidence it was held that it was for the jury to pass upon the relations between the stevedore and the laborers, and to find whether they were engaged in a common employment. In the case in hand, the duties of the mining-boss are fixed by an Act of Assembly. It is not, therefore, essential that a jury should fix the relations between the mining-boss and the deceased. The case of Howell et al. v. The Landore Siemens Steel Co., Limited, Law Rep. 10 Q. B. 62, is directly in point. There the defendants were the owners of a colliery within the Coal Mines Regulation Act of 1872 (35 & 36 Vict. c. 76), and they had appointed a certified manager, as required by sect. 26. A miner employed in the colliery was killed by an explosion of fire damp, caused by the negligence of the manager. It was held “ that the fact that the manager was appointed pursuant to the act did not put him in any different position from that he would have held had he been simply appointed manager; and that he was a fellow servant with the deceased, and the defendants were therefore not liable to the representatives of the deceased for his death.” Judgment reversed.