Lehigh Coal Co. v. Hayes

Opinion, Mr. Justice Green: Upon the trial of this cause no evidence was given by the plaintiff to show that the defendant’s breaker and the machinery used in crushing and screening coal, was in any manner [306] defectively built, or that it was not built in the same manner and with tbe same appliances as are used in all similar structures. The single act of negligence in this regard alleged against the defendant was, that it had no appliance and used no means or method by which warning could be given to persons working in the pocket, that a draw was about to be made. No evidence was given to show that it was customary among coal operators to give any such warning in the conduct of their collieries. It follows that there was no proof that the defendant neglected any of the precautions which were usually observed in carrying on the business of crushing, screening and shipping coal. But the defendant did give testimony of importance upon this subject. G. M. Williams, the mine inspector for the district in which this colliery was situated, testified that there were sixty-two collieries or openings altogether in the district, and that this breaker with its chutes and pockets was constructed in the usual, ordinary way, in which such breakers are constructed in that region. He also said he did not know that there was in use, in any of the collieries of the district, any signaling apparatus to indicate when coal is about to be drawn out of a chute to be lowered into a car. Joseph Tyrell, another witness, whose business was building breakers and who built this one, testified that the breaker was built in the usual way in which breakers are built in that region, and that he knew of no breaker in the region in which, prior to this accident, any apparatus or devise was used to signal before coal was drawn from the chute into cars. There was affirmative testimony, therefore, that this breaker was built in the usual way in which all breakers were built in that district, and that there was no custom or use, known to the witnesses, of having appliances of any kind to signal the drawing of coal from the chutes. Against this there was no opposing testimony whatever. The rule in regard to the obligation of the employer respecting the character of the tools and appliances furnished by him, has been repeatedly stated in the recent decisions of this court. Thus in Pittsb. etc. R. Co. v. Sentmeyer, 92 Pa. 276, we said that when the employer furnishes his employees “ with tools and appliances, which though not the best possible, may by ordinary care be used without danger, he has discharged his [307] duty and is not responsible for accidents.” In Payne v. Reese, 100 Pa. 301, we said: “ An employer is not bound to furnish for Ms workmen the ‘safest’ machinery, nor to provide the ‘ best methods ’ for its operation, in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character and such as can with reasonable care be used without danger to the employee, it is all that can be required from the employer; tMs is the limit of his responsibility and the sum total of his duty.” In Allison Mfg. Co. v. McCormick, 118 Pa. 519, we said: “ The general rule requires of the master that he provide materials and implements for the use of his servant, such as are ordinarily used by persons in the same business; but he is not required to secure the best known materials, or to subject such as he does provide to a chemical analysis in order to settle by experiment what remote and possible hazard may be incurred by their use.” In Ship-Building Works v. Nuttall, 119 Pa. 149, we held that the employer was under no obligation to give warning to his employee of the dangerous character of a circular saw, or to provide it with a spreader to prevent accidents. As to the spreader, we said: “The testimony shows that such an attachment is not in general use, and that there is no general agreement among mill owners or practical sawyers that it is a desirable or a useful attachment. It is not enough that some persons regard it as a valuable safeguard. The test is general use. Tried by this test, the saw of the defendant is such an one as the company had a right to use, because it is such as is commonly used by mill owners; and it was error to leave to the jury any question of negligence based on the failure to provide a spreader.” Applying these principles to the facts of the present case, we fail to discover any evidence of negligence on the part of the defendant, so far as the character of the breaker and its appliances is concerned, and hence we can find nothing upon wMch to support a verdict for the plaintiffs. It was argued that the defendant should have given a warning to the deceased that the coal was about to be drawn, but in view of the fact that the plaintiffs gave evidence tending to show that the boy sent out word that they should draw the coal, he being at that time in the chute, the necessity for any such warning does not ap [308] pear. It was a matter of no consequence, so far as he was concerned, whether his message was communicated to the parties outside or not. He at least was bound to avoid a danger which he must have had knowledge was likely to occur immediately. We think a verdict for the defendant should have been directed upon all the testimony. We sustain the first, second, third, seventh and eighth assignments. Judgment reversed.