Gulla v. Lehigh Valley Coal Co.

Opinion by Henderson, J., The negligence charged against the defendant and established by the verdict of the jury was the failure to provide a guard rail along the platform or walk on. which the plaintiff’s son was at work at the time he sustained the injury which resulted in his death. It is the duty of the employer to provide reasonably safe appliances for the use of his employees in the prosecution of their work. In the case under consideration this duty was imposed by the fifth section of article 5 of the act of June 2, 1891. The matter of construction is not left to the discretion or judgment of the employer, but is specifically provided for. Screens, shafting and belting in breakers are to be protected by covering or railing so as to prevent persons from inadvertently walking against or falling upon them; and the sides .of stairs, trestles and dangerous plank walks are to be provided with guard railing to prevent persons from falling over the sides. This duty relates to the structure of the plant, and is to be performed before the employee is subjected to the risk incident to its omission. Where, in the case of a corporation, the obligation must be discharged through an officer or agent, such officer or agent represents the principal, and his act is the act of the principal: Ross v. Walker, 139 Pa. 42. The defendant was bound by the regulations of the statute to see that the exposed position was protected before its machinery was set in motion and its servants subjected to danger. The cases of Waddell v. Simoson, 112 Pa. 567, and Durkin v. Kingston Coal Company, 171 Pa. 193, relate to the responsibility of the employer for negligence of an inside foreman in the prosecution of the work of a mine. The superintendents there referred to were certified foremen and in a sense state officers. The mine owners were limited in the selection of their foremen to this class. The law providing for their appointment cast upon them duties and responsibilities with [15] reference to which the owners had no control. The questions raised in the cases referred to involved the exercise of judgment and discretion by the mine foremen, and it was held with good reason that inasmuch as the owners were not at liberty to employ whomsoever they would, and inasmuch as the duties of mine foremen were prescribed by statute, the proprietors were not responsible for the lack of sound judgment or adequate care of such foremen. The reasoning in those cases does not apply to that now under consideration. The defendant could not only employ any person deemed suitable as outside foreman, but was bound before the duties of the foreman arose in prosecuting the work of the breaker, to have the safe appliance required by the statute for the protection of employees. The foreman is not permitted to exercise discretion with reference to this particular requirement. The duty is absolute. We are not satisfied from the evidence that the danger was so obvious that the employee assumed the risk, even if we concede that this doctrine applies where the injury results from the employer’s failure to perform a duty expressly enjoined by statute. The boy was in the position in which he was placed by the foreman, and was engaged in the performance of the task assigned to him. The platform had apparently been in use for a long time, and was not considered a position of imminent danger, for the foreman and the “ breaker boss ” daily saw employees of the company at work there: Bennett v. Standard Plate Glass Company, 158 Pa. 120; Brislin v. Kingston Coal Company 20 Pa. Superior Ct. 234. The question is one of a defective appliance, and this was submitted to the jury with adequate instructions. It does not clearly appear that the stepfather stood in loco parentis. The plaintiff was married to her second husband a few months before the accident. Evidence was offered that the stepfather boarded his stepson and bought clothing for him, and that he paid his funeral expenses. There is evidence, however, that they were occupying the house in which the plaintiff lived before her second marriage, and that her son paid the rent out of his wages. Just what the family relation was does not appear in the evidence, nor do we consider it material. The plaintiff’s right of action arises under the act of June 2, 1891. The value of the life lost is treated as a [16] species of property which, under the statute, belongs in this case to the mother: Haggerty v. Pittston Boro., 17 Pa. Superior Ct. 151. We think the jury was not misled by the instructions of the court on the subject of damages. They were limited to a consideration of the evidence on the subject and to wages in employment of the character of that in which the plaintiff’s son was engaged. The wages then earned were strong but not conclusive evidence of the boy’s earning capacity. Compensation according to the evidence was the rule stated by the court, and particular attention was called to the age and wages of the deceased. The amount of the verdict was not excessive and indicates that the jury was controlled by the evidence on the subject. The assignments of error are overruled and the judgment affirmed.