O'Brien v. Pennsylvania Coal Co.

Opinion by Mr. Justice Brown, At the time the appellee was injured he was in the employ of the appellant as a track repairer. It owned and' operated a colliery in which there was a rock slope two hundred and twelve feet in length. On this there were two railways having a gauge of three feet each, with a space between them of two feet, to allow ascending and descending cars to pass. The bodies of the mine cars projected eight and one-half inches beyond the outside rail of each track. The space between the bodies of these cars and the side or rib of the slope was a matter in dispute on the trial. As the appellee was at work on one of the tracks a “trip” of loaded cars came down towards him and he attempted to escape it — 49 — by rushing to the side or rib next to the track upon which he was working. He stood upright there, with his back against the side, but the cars struck him and he was seriously injured. The negligence of which he complains was the failure of the appellant to observe rule 43, Article XII, of the Mining Act of June 2, 1891, P. L. 176, which provides that “every passage-way used by persons in any mines and also used for transportation of coal or other material, shall be made of sufficient width to permit persons to pass moving cars with safety, but if found impracticable to make any passageway of sufficient width, then holes of ample dimensions, and not more than one hundred and fifty (150) feet apart, shall be made on one side of said passage-way. The said passage-way and safety holes shall be kept free from obstructions and shall be well drained.” The statement specifically charges a disregard of this statutory duty and avers that, as a consequence of appellant’s neglect in this respect, the appellee was injured. The jury found — and upon sufficient evidence — that the appellant had not regarded its duty as imposed upon it by the act of assembly. Counsel for appellant seem to think, and earnestly so contend, that the appellee’s case could not have gone to the jury but for the testimony of James Flynn as to the width of the slope, and that his testimony ought not to be regarded as sufficient to show that there had not been a safe passage-way between a moving car and the rib or side of the slope. In asking this court to so hold, reasons are given which might very fairly have been addressed to the jury in asking them not to credit Flynn’s testimony, but it is not for us to say that “a reading of the testimony of this witness will show that the means which he adopted to qualify himself for his task were not such as any fair, unbiased, or reasonable man would sanction or approve to arrive at a correct result in a matter of so much importance.” Whether a witness is fair and unbiased, or unfair and biased, is — 50 — exclusively for a jury, and if Flynn was to be believed by the jury in this case, they could fairly have found, as they probably did, notwithstanding what counsel for appellant regard as discrepancies in his testimony, that he knew, not only from his long familiarity with the slope, but from actual measurements, that it was not of the width testified to by the witnesses for the appellant, and that a safe passage-way had not been maintained, as required by the Act of 1891. But the case was not “finally submitted” to the jury on the testimony of Flynn, as counsel for appellant contend. Its negligence was made out by the testimony of the plaintiff and one, Luke Connors, as brief extracts from it will show. The plaintiff testified in part as follows: “Q. When you saw the car coming down — the loaded trip coming down— how far were you from it? A. I was, maybe, about thirty feet, might be a little more. Q. How far was the unloaded trip coming up from you — about the same distance? A. About the same distance. Q. Then when you saw the car coming down and the one coming up, what did you do? A. I made for the rib. Q. That is you made for the side? A. Yes, the side, that is the rib. Q. Then what did you do? A. I stood up to it. Q. Just come down and show the jury how you stood up against the rib. Suppose coming along here- A. I had not time. I stood up this way, tried to save myself, car come hit me and that is all I know. Q. Wait. About what was the distance from the track to the rib at the place where you were struck? Q. About how far? A. About eight inches. (The Court.) By the track you mean the outside rail? Mr. Lenahan. From the outside rail, yes; the rail nearest the rib. Q. What then did the car do to you as you were standing there against the rib? A- It hit me and it dragged me a piece until I fell under the car.” On cross-examination, in describing the distance between the rib and the outside rail on the opposite track, the following appears in Ms testimony: “Q. There was a rope attached to this — 51 — empty car that was coming up? A. Yes, sir. Q. You could have stepped over that rope? A. Yes, but I would be just as bad that side as — I would be hit one side as bad as the other. Q. You would have been hit? A. Yes, the other trip would have hit me. Q. The body of the car on the light track did not run up against the rib; there was some space between the rib and the body of the car on the other side? A. Was not a foot. Q. You did not measure it to know? A. Of course I did, because the end of the tie went up against the rib. From the rail to the rib is no more than seven or eight inches. Q. The space on the other side — that is the light track —between that and the rib — between the car and the rib was wider than the right hand side, was it not? A. Not a bit.” Connors, who had worked on the slope from the time it was first operated up to the time of the accident, and was entirely familiar with the situation, testified as follows: “Q. Whether or not you are familiar with the plane there? A. I am. Q. Taking a point about the middle of that slope or plane, what was the distance from the rail nearest the rib, what was the distance from that rail to the rib? Q. (Defendant’s counsel.) Did you measure it? A. No, sir. Q. (Plaintiff’s counsel.) Saw it frequently? A. Saw it often. I was going to mention how near I could do it by the eye. Q. What was the distance? A. I would call it about ten inches. Q. How about on the other side? A. Much the same.” The defendant’s negligence having been thus made out by the testimony of the plaintiff and his witness, if they were to be believed by the jury, the court submitted to them that question, as well as the contributory negligence of the plaintiff in not going over to the other side of the slope, in the following clear and correct instruction: “If after a careful consideration.of all the testimony you are satisfied that there was no safe passage-way of sufficient width to permit persons to pass moving cars and that the plaintiff was not guilty of contributory negligence — that is, any negli — 52 — gence on his part which contributed to the injury, that he was using due and reasonable care under the circumstances — then your verdict should be for the plaintiff. If, on the other hand, you believe that there was no space of sufficient width to permit persons to pass moving cars with safety on the left hand side but that there was a space of sufficient width to permit persons to pass with safety on the right hand side, even though the defendant company were negligent and violated the statute in not providing a passage-way on the left hand side, if the plaintiff could by reasonable care and diligence reach the right hand side and secure a place of safety it was his duty to do so, and even though the defendant was guilty of negligence the plaintiff could not recover, because it was his duty, if he could by exercising reasonable diligence and due care, to go to the side where a safe passage-way was provided. In passing upon this question as to whether he exercised due care and diligence it is your duty to take into consideration the conditions as they existed at the time of the accident — the plaintiff’s age, his ability to reach the passage-way, if such there were, the location of the two tracks, the two moving ropes, one moving up and the other moving down the plane over which he would have to cross, and the danger, as he stated, of encountering the car on the other side — all these facts are for you to take into consideration in passing on the question of the plaintiff’s contributory negligence and his duty to take reasonable care of himself, and whether or not he could have reached the other side, if there was a safe place at that point, bearing in mind the plaintiff was not obliged to put himself in danger in reaching that side.” It is further contended that appellee was guilty of contributory negligence, and that the court should have so instructed the jury, because he had disregarded rule 21 of the Act of 1893, which is as follows: “When any person is about to descend or ascend a shaft or slope, the headman or footman, as the case may be, shall — 53 — inform the engineer by signal or otherwise of the fact, and the engineer shall return a signal before moving or starting the engine. In the absence of a headman or footman the person or persons about to descend or ascend shall give and receive the signals in the same manner.” At the time the appellee was injured he was not about to descend or ascend the slope. For two hours prior thereto he had been at work about midway between the top and bottom. Rule 21 is, on its face, applicable to one who is about to “descend or ascend a shaft or slope,” and the four rules immediately preceding it, to be read in connection with it, clearly show that it applies only to persons at the head or foot of a slope or shaft. Rule 17 prescribes the number of persons to be hoisted or lowered at one time; rule 18, the qualification of the engineer in charge of the engine; rule 19, how he shall work it, and rule 20, the signals for ascending or descending. The first, second, third, fourth, fifth and ninth assignments are overruled. The sixth assignment complains of the refusal of the court to instruct the jury that the defendant company was not required to maintain a safe passage-way on both sides of the slope to permit a moving car to pass persons in safety. The purpose of the Act of 1891 is to provide for the safety of persons passing mining cars in coal mines. It is silent as to a passage-way on each side of a slope. It says nothing of the number of passage-ways to be maintained in mines. What it requires is that every passage-way used by persons in mines shall be of sufficient width to permit them to pass moving cars with safety. In the present case there were two tracks, and the Act of 1891 was for the safety of those upon either of them. To provide for such safety a passage-way on only one side of a slope might be insufficient, for here, even if there had been a safe one on the opposite side, the plaintiff could not, according to his testimony, have reached it without danger of being struck by the ascending car. A safe passage-way — 54 — on one side of a slope, without regard to its width or the number of tracks upon it, is not all that the Act of 1891 requires, and it has never been so held. One such passage-way may or may not be sufficient, and whether it is or is not must depend upon circumstances. In the present case the appellee was working on the track next to the side of the slope which did not have a safe passage-way. Suppose there had been a safe one on the other side; he could not have reached it in safety, and the affirmance of defendant’s eighth point would have relieved the defendant entirely of the charge of negligence, if the jury should have found that there was a safe passage-way on the opposite side. In Reeder v. Lehigh Valley Coal Company, 231 Pa. 563, cited as an authority calling for the affirmance of the defendant’s eighth point, there was but a single track; and a passage-way on one side of it, if of sufficient width and unobstructed, was all that the act required. The question raised by defendant’s eighth point was neither raised nor passed upon in that case. While the court’s answer to defendant’s ninth point, which is the subject of the seventh assignment, might have been fuller on the instruction asked for, we do not regard it as reversible error in view of what was said in portions of the general charge, not assigned as error, on the question of the measure of damages. That portion of the charge complained of by the eighth assignment was an instruction to the jury not to regard the “arithmetical rule” which counsel for plaintiff had given them for their guidance in passing upon the measure of damages. There is no reason why appellant should complain of this. The offer, the exclusion of which is the subject of the tenth assignment, might, if it had been allowed, have been the first step in a departure from the orderly trial of the cause, and there was no abuse of the court’s discretion in overruling it. — 55 — If the appellant had so desired, the premises might, •under the rules of court, have been viewed by the jury. The assignments are all overruled and the judgment is affirmed. .