Simmons v. Lehigh Valley Coal Co.

Opinion by Mr. Justice Mestrezat, This case requires but brief consideration. It arises out of the same facts as Reeder v. Lehigh Valley Coal Company, 231 Pa. 563, and Pauza v. Lehigh Valley Coal Company, 231 Pa. 577. The plaintiff in the present case was one of a number of employees of the defendant company who entered its mine on the morning of December 16, 1905, and was injured by the explosion of a keg of powder, carried by one James Smith, another employee, which came in contact with the electric haulage wire. The questions in the case on which the liability of the defendant turned were: (a) Did the defendant company provide a passageway for use of its employees through the tunnel as required, by the statute, [357] and if not, was the failure to do so the proximate cause of the plaintiff’s injuries; and (b) were the explosion of the keg of powder and its resulting consequences contributed to by the negligence of the plaintiff or Smith or any other co-employee? Article 12, Rule 13, of the Act of June 2, 1891, P. L. 176, 3 Purd. 2578, provides: “Every passageway 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 ampler dimensions, and not more than one hundred and fifty (150) feet apart, shall be made on one side of said passageway. The said passageway and safety holes shall be kept free from obstructions and shall be well drained; the roof and sides of the same shall be made secure.” In submitting the case to the jury, the learned judge said: “We may say there are two principal points involved. The one is as to whether the defendant carried out the law as laid down in this act of assembly. The other point is as to whether the plaintiff himself contributed toward this accident or whether any other co-employee at this colliery contributed toward this accident.” He further instructed the jury that the failure to provide the passageway “must have been the proximate cause of the accident.” We distinctly ruled in the Reeder case that the defendant company did not provide a safe passageway on the east side of the tunnel, and that whether Smith was negligent or not could not be declared by the court as a matter of law but was a question for the jury. By its own admission as to the facts of the case the defendant did not provide the requisite passageway or safety holes on the west side of the tunnel. These were the controlling questions in the present ease, and having been determined in favor of the plaintiff, a verdict for him necessarily followed. The statement of claim avers that the defendant dis [358] regarded “its duties to provide a safe place for its employees to work in, and to provide safe passageways, tunnels, gangways and other openings for the safe ingress, egress and regress of its employees,” and, therefore, as the case was tried and submitted to the jury, the defendant company’s liability was made to depend on whether it had provided the requisite passageway for its employees and whether its failure to do so* was the proximate cause of the plaintiff’s injuries. Whether the electric haulage wire was in proper condition, for which the' mine foreman was responsible, was not.in the case save as the explosion caused by it was one of* the intervening agents producing the plaintiff’s injuries. For the failure to provide the proper statutory passageway the company was, of course, liable to the injured party, and the evidence fully warranted the jury in finding that it was the proximate cause of the injuries sustained by the plaintiff. Article 17, Section 8 of the Act of June 2, 1891, P. L. 176, 3 Purd. 2583, provides: “That for any injury to person or property occasioned by any violation of this act or any failure to comply with its provisions by any owner, operator, superintendent, ......a right of action shall accrue to the party injured against said owner or operator for any direct damages he may have sustained thereby.” The fact that the company had placed in the mine a competent, certified mine foreman did not relieve it from the liability imposed by the statute. To provide a proper passageway in the tunnel was a nondelegable duty imposed on the mine owner and not one of the statutory duties imposed on the mine foreman. We have carefully examined the several assignments of error, and in view of the questions involved and submitted to the jury we find no merit in any of the assignments. The learned counsel for the defendant company apparently misapprehended the issues in the case as well as the theory on which the case was tried. The elaborate opinions of Mr. Justice Elkin in the [359] cases above referred to in which the facts were the same as here relieves us from any extended discussion in the present case. We are all of the opinion that the judgment should be affirmed, and it is so ordered.