Waddell & Walter v. Simoson

Mr. Justice Gordon delivered the opinion of the court, May 10th, 1886. In the case of the Lehigh Valley Coal, Co. v. Jones, 5 Nor., 432, as also in the Delaware & Hudson Coal Co. v. Carroll, 8 Id., 374, it was held by this court that the mining boss is a co-employ é with the other workmen engaged in a coal mine, and that, as a consequence, the owners of the mines are not responsible for damages resulting to a fellow workman from his negligence. Without overruling these cases, which in principle are sustained by many others, we cannot see our way clear to adopt the ruling.of the court below as to the case in hand. The competency of the defendants’ mining boss does not seem to have been questioned; it was but alleged that he was negligent in not having the roof of the gangway properly secured by props or other appliances, which might have prevented the fall of the rock that killed the plaintiffs’ son. But that the employer cannot be made responsible for damages resulting to a servant from the negligence of a fellow servant, is a principle as old as the common law. Moreover, as the defendants had complied strictly with the 8th section of the Act of 3d of March, 1870, in providing a practical and skilful inside overseer, or mining boss, and as the]' had thus fulfilled the duty imposed upon them by the General Assembly, it is not for this or any other court to charge them with an additional obligation. As was said by our brother Paxson, in the ease last cited.: “ It is too plain for argument that if the defendants have not violated said Act they are not responsible.” To this doctrine we must adhere, and the more so that it is just and reasonable. The Act is one of great practical utility to the miner, and lays upon the proprietors of mines all the burthens they ought of right to bear. The]' must provide capable over [574] seers for their works, and they must furnish what, by such overseers, is required for the safety and welfare of the men engaged in those works. More than this they cannot do, for upon the judgment and skill of these practical agents they must depend quite as much as any of the men who are engaged in their mines. Bosses, however well intentioned and skilful, cannot always be on the watch ; occasionally they will fail in judgment, and at times may even be negligent; but of this, the workman is quite as well aware as his employer, and in entering upon the employment of mining he must assume the risks that are ordinarily incident thereto, among which are those accidents that may result from the negligence of co-employés, of whom, as we have seen, the mining boss is one. It follows that the court below should have affirmed without qualification the fifth, ninth and tenth points of the defendants, and as these errors require a radical reversal of the case, we need not notice the remaining assignments. The judgment is reversed.