Pittston Coal Co. v. McNulty

Opinion Mr. Justice Clark : The plaintiff in this case, on the 27th of September, 1883, was, and for some time prior to that had been, an employee of the Pittston Coal Company. He was at that time a lad of twelve or thirteen years of age, and was employed to oil the machinery in the breaker. On the day mentioned, however, he was temporarily sent into the mines, to serve as a driver, in which capacity it was his duty to hitch a mule to loaded cars at the heading, and drive the mule on a side track a mile or more to the main or loaded track at the foot of the slope, where the mule was detached from the car and hitched to an empty one, which was hauled over the same route to the heading. The grade of the side track for fifteen or twenty yards from the place of its connection with the loaded track, as well as the grade of the loaded track, for some distance from the same point, was sufficient for the loaded cars to run slowly, by gravity, towards the foot of the slope. What is called a “stretcher” was used in hitching the mule to the car, and as the car came upon the loaded track, and approached the loaded cars standing thereon, it was the duty of the driver to stop the mule, detach the stretcher, and allow the animal to step off the track and out of the way of the moving car, in order that it might drop down the grade in the rear of the others. [423] The lad, McNulty, was delivering his sixth car on the loaded track; as he approached the point where he was to unhitch, he stopped the mule and attempted to detach the stretcher. But the mule “started out again,” the stretcher struck the boy on the breast, threw him on the track in front of the car and the front wheel severed four of the fingers from his left hand. The car stopped and the mule stood still, whilst the boy by the aid of others was extricated from this perilous place. This suit is brought against the company to recover damages for the injury thus received, upon the ground that the mule was unsafe and unsuitable for the purposes for which he was used; that he was a vicious and intractable animal, would bite, kick, and run away; that his vicious habits were well known to the company, and that the company was negligent in permitting him to be used in the mine. The plaintiff’s contention is, that the company was bound to furnish the boy with a mule that was reasonably safe; that the boy accepted only the ordinary risks of the business, and that he was wholly ignorant of the vicious character of the animal he had in charge. Assuming all this to be so, the difficulty in the plaintiff’s case is that the injury does not appear to have occurred from any vicious habit or conduct of the mule. From all that has been shown, it appears that when the boy reached down to detach the stretcher, the mule “ started out again,” and in consequence of this, and this only, the injury occurred. The occurrence is thus stated by the plaintiff himself:— Q. You were bringing out the sixth car you say? A. Yes, sir, coming out with the sixth car, the loaded track was full, and I hollered “ whoa ” to the mule when I thought it was fit to unhitch, to get her out of the road. Q. What do you mean by fit to unhitch? A. Why, to get the mule out of the road. Q. To get the mule out of the road before the mule ran against the last loaded car — is that it? A. Yes, sir; then he stopped and I bent over for the stretcher and he started out again, and the stretcher come up like that (illustrating) and catched me in the breast, knocked me across the stretcher and that is all I know about it. There is no pretence that the mule attempted to bite, or to kick the boy, and there is no evidence that he tried to run away. The car was moving slowly down the grade by its own [424] gravity, and this alone may have caused the mule to “ start out again; ” almost any horse or mule, however gentle and well broken, might start unbidden under such circumstances. The mule had been trained promptly to step out from the front of the car at this point, and it is quite reasonable to suppose that in starting out, he did what he conceived to be his duty. The boy was but a novice in the business, and may not have been as prompt as one more accustomed to the work. That the mule was not guilty of any vicious act, is shown by the admitted facts in the case. When the lad fell in over the stretcher his light went out, he cried “ whoa ” and the mule stopped; he was lying partly on and partly under the stretcher in front of the car, on the track, with his hand under the wheel. He was certainly in a place of the greatest peril, for the mule might have kicked him, or, by moving a single step forward, might have dragged the car over him. But the mule did not kick him, nor did he stir from the spot, until a light was obtained, a lever applied to the wheel, and the boy rescued from danger. The action is by an employee against his employer; the gist of the action is negligence, and the burden of proof rests upon the plaintiff to prove that the negligence of the defendant was the proximate cause of the injury. Upon an examination of the whole case, we fail to find the slightest evidence that the injury complained of resulted from any vicious habit or conduct of this mule. We are not to assume that when he “ started out again,” he started to run away; the testimony is wholly to the contrary. We find nothing in the evidence to justify a submission of the case to the jury, and therefore, The judgment is reversed.