McConnell v. Moosic Mountain Coal Co.

Opinion by Head, J., Unless the learned court below should have directed a verdict for the defendant, or thereafter entered judgment n. o. v. in its favor, this appeal must be dismissed. The evidence adduced by the plaintiff clearly supported a finding, that at the time of the accident his minor son, who was fatally injured, was neither a trespasser nor a volunteer. He had been employed by the defendant company for several years, and the service he was performing at the time of his injury was that which he had been regularly engaged in during the entire period of his employment. It is true the defendant was able to show that the boiler, a portion of which gave way and caused the accident, had been recently inspected. The controlling question in the case turned on the adequacy of the inspection and the fitness of the inspector for his work. The question whether or not the agent, selected by the defendant to perform a duty which rested on the defendant, was competent, was a question of fact to be resolved by a jury under proper instructions from the trial court. The situation from a legal point of view is thus tersely stated by Mr. Justice Fell in Lillie v. American Car Co., 209 Pa. 161: “The question whether the defendant had performed its duty in the employment of competent men to make repairs was submitted with instructions that would permit a finding against it, if it had not exercised reasonable care in this respect, and would prevent one if it had. The duty to provide a safe place to work and to maintain it in a reasonably safe condition by inspection and repair, is a direct personal and absolute obligation from which nothing but performance can relieve an employer, and the person to whom it is delegated becomes a vice principal, whose neglect is the neglect of the employer.” The learned [109] trial judge, we think, carefully followed the line marked out in the utterance of the Supreme Court we have just quoted, which was but a condensed statement of a legal principle universally recognized by the courts of Pennsylvania. Referring to the evidence as to the inspection that had been made, the learned trial judge thus instructed the jury, “If that inspection was complete, if Mr. Forgeng (the inspector) did his duty as an inspector, if Mr. Forgeng fully performed his duty, then the company would not be liable, but if the inspection made by Mr. Forgeng was not complete, was not as thorough as it ought to be under the circumstances and the surrounding conditions, then the company would be liable for any defect in the inspection on the part of Forgeng.” As we view it, this was a correct statement of the law and directed the minds of the jury to the real and controlling issue in the case. It is our judgment there was a question of fact involved in the case which required its submission to the jury, and the record being free from any trial errors there is left no ground upon which this appeal could be sustained. The assignments of error are overruled and judgment affirmed.