Velas v. Patton Coal Co.

Per Curiam, It is well settled that if no exception is taken to the form of a reservation at the trial the parties are bound by it and cannot be heard in the appellate court against it: Mohan v. Butler, 112 Pa. 591; Boyle v. Mahanoy City, 187 Pa. 1; Rynd v. Baker, 193 Pa. 486. In the case at bar no exception to the form of the reservation was taken at the trial, and therefore the parties are bound by it as above stated. It is alleged by the plaintiff that the order of which he complains was given to him by the mine foreman, who was his fellow-servant. There is no evidence in the case that the superintendent participated in any manner in the direction or control of the work in which the plaintiff was engaged. Indeed it is at least doubtful whether the superintendent was present or in hearing when the order was given, or the injury to the plaintiff was received. If, therefore, there was any negligence which caused the accident, it was the negligence of the mine foreman, of the plaintiff, or of both. There is no evidence in the case on which negligence can be charged against the Patton Coal 384 Company or its superintendent. It follows that the defendant company is not chargeable for the injury the plaintiff received. We therefore affirm the judgment on the opinion and decree of the learned court below. Judgment affirmed.