Janosky v. Lehigh Valley Coal Co.

Opinion by Mr. Justice Mestrezat, We agree with the learned court below that the Pitts-ton shaft, where the plaintiffs’ son received his injuries resulting in his death, was a mine in contemplation of the Anthracite Mining Act of June 2, 1891, P. L. 176. Article 18 of the act defines a “mine” as follows: “In this act, unless the context otherwise requires, the term ‘coal mine or colliery’ includes, every operation and work, both under ground and above ground, used or to be used for the purpose of mining and preparing coal ......The term ‘mine’ includes-all underground workings and excavations and, shafts, tunnels and other ways and openings; also all such shafts, slopes, tunnels and — 194 — other openings in course of being sunk or driven, together with all roads, appliances, machinery and materials connected with the same below the surface.” A mine, therefore, in contemplation of the act is “every operation......for the purpose of mining” coal. It includes all the underground workings and excavations and shhfts, connected below the surface by tunnels and other ways and openings, and operated by one general haulage, ventilation and mine railroad system. It does not include separate and distinct underground operations disconnected and operated by separate and distinct mining systems. The underground workings to constitute a mine may be small or large, may be reached by one or several shafts, but they must be connected and operated by one and the same system. We cannot agree with the contention of the learned counsel for the appellant company that its several disconnected operations, called the Seneca colliery, constitute a mine within the statutory definition. Each operation is carried on by its own system of mining, and has no connection with any of the several other operations than that they have a common ownership and the coal •is taken to the same breaker on the surface to be prepared for market. If this were the proper definition of a mine, whether several operations constitute a mine would depend solely upon whether they are owned by the same person or corporation. There is nothing in the act which will permit of such definition. On the contrary, the provisions relative to mine foremen clearly contemplate that the underground workings of a mine shall consist of a single and connected operation. The act provides that the owner of a mine or colliery shall place the underground workings thereof under the charge and daily supervision of a mine foreman who shall keep a careful watch over the internal workings so as to insure the safety of the miners. He is expected to personally carry out all requirements of the act pertaining to his duties and can only employ assistants — 195 — when he is nnable to do so. He is employed because of his special fitness for the position and is expected to be present in the mine and give it his personal attention. If, however, a mine may consist of or include as many separate and distinct underground operations as are owned and operated by a single owner, it is clear, we think, that the mine foreman could not perform the duties imposed by the statute. He would be, as clearly appears in this case, a general superintendent having in charge the several separate underground operations and performing the duties imposed upon him personally by an assistant in each one of the several mines. In such case, the men employed in the mines do not have the protection of his personal supervision and control which the act manifestly intends. The foreman is selected for his special fitness for the position, and the efficient performance of his duties requires that he should be present in the mine over which he has supervision. The defendant’s two mines operated through the Pitts-ton shaft and the Twin shaft are known as the Seneca colliery. The mines are at least half a mile apart and have no underground connection. Janosky was killed while he was at work in the Pittston vein which was reached by the Pittston shaft. The underground workings of both mines were placed, in charge of Thomas O’Brien, a certified mine foreman. He employed Michael Eagan as assistant mine foreman and assigned him to duty in the Pittston vein. It is clear, we think, that the employment of O’Brien as mine foreman for the two mines was not a compliance with the Act of 1891 so as to make him a statutory mine foreman for the Pitts-ton mine. . Article 12 of the Act of 1891 provides that the owner shall place the underground workings of his mine or colliery and all that is related to the same under the charge and daily supervision of a competent person who shall be called “mine foreman.” Section 6 of Article' 8 imposes a penalty upon the owner “in case any mine is worked a longer period than thirty days without — 196 — such certified mine foreman.” The owner is required to authorize the mine foreman to employ assistants when he cannot personally carry out the provisions of the act. There are several other provisions of the statute which clearly indicate the legislative intent that a foreman shall be employed for each separate operation or mine. The statutory duties imposed upon the mine foreman require that he shall be in the workings of the mine and give them daily supervision. As will be observed, he is only authorized to employ an assistant when he cannot personally carry out the provisions of the statute requiring him to be in the mine and personally direct the mining operations. The object of this provision of the statute is not to authorize the foreman to employ an assistant for each separate underground operation of the owner and place him in charge of it so that the foreman may perform his duties as such in several mines. The foreman and his assistant are expected to perform their duties in the same mine, the latter being subject to the control and direction of the former. If a mine foreman may be employed for more than one operation he may be employed and have charge of a dozen operations, distantly separated from each other, so that he can give none of them personal attention nor daily supervision which, as we have seen, would defeat the express provisions of the statute. We are of opinion that under the Act of 1891 the employer must place a certified mine foreman in charge of the underground workings of each operation or mine, and that the employment of one foreman and putting him in charge of more than one mine is not a compliance with the statute. While engaged as a runner in the defendant’s Pittston mine a large piece of black rock fell from the roof of a gangway on the plaintiffs’ son from which he sustained injuries resulting in his death. The statement alleges that the gangway was negligently and carelessly maintained by failing to remove the rock from the roof. The defense is (a) that the mine was in charge of a certified — 197 — mine foreman and if the rock was negligently permitted to remain in the gangway it was his negligence for which the defendant is not liable, and (b) that the evidence failed to disclose any negligence on the part of the defendant. As pointed out above, the defendant company failed to comply with the statute and place the mine in charge of a certified mine foreman, and hence it is not in the position to invoke the rule that the mine owner is not responsible for the negligence of the mine foreman. It is true that O’Brien was in charge of this mine and directed its operations. But like any superintendent or manager he was acting for the owner in operating the mine, and therefore became a vice-principal for whose conduct the owner is liable for injury resulting from his negligence. The owner of a mine is responsible for the negligent acts of his representative or vice-principal, and if he claims immunity from liability through a statute he must show a strict compliance with its provisions. Eagan was employed by the defendant company as O’Brien’s assistant and the two employees were directing the operations in the mine. For the negligence of either or both of these parties, the defendant is responsible to the injured party.. The learned court correctly instructed the jury that “if you find that the defendant company was negligent by reason of the negligence of Mr. O’Brien and Mr. Eagan or both or either, in the performance of their duties, then you will determine whether or not the plaintiffs are entitled to compensation.” We think there was sufficient evidence of negligence to submit to the jury. Janosky was killed by a large stone called “black rock” falling on him from the roof of the gangway. It was concededly dangerous and was a menace to miners working in that vicinity. O’Brien testified that it was not safe for a miner to work under it as it was liable to fall at any time, and that he had ordered it to be removed wherever it was found. The plaintiffs claim, and introduced evidence to show, that — 198 — O’Brien and. Eagan knew of this piece of black rock or by the exercise of ordinary care in inspecting the gangway they conld have known of its existence. In fact, O’Brien testified that he “saw it there as I passed, and took it for granted it was safe.” This testimony is difficult to understand in view of the fact that he had previously testified that all black rock was dangerous and likely to fall and, therefore, he had required it to be removed. Under the evidence, we think, the question of the defendant’s negligence was for the jury. The judgment is affirmed.