Christner v. Cumb. etc. Coal Co.

Pee Cueiam: We do not understand that there was any serious dispute upon the trial below, as to the material facts of this case. This appears from the following extract from the charge of the learned judge: “ On the material facts, which alone the jury pass on, there seems now, after hearing all the evidence, to be no dispute. The senior counsel for the plaintiff very properly admits that, on the facts as proved, there can be no recovery of damages independent of the mining act of 1885.” As this portion of the charge is not assigned as error, we may assume the facts to be as stated by the learned judge. It appears that the plaintiff was injured by the falling of a portion of the roof of the mine where he was working. Having made a blast, and loosened a quantity of coal, it was his duty to examine the roof, and to place props to support it, if necessary. The props were conveniently at hand for that purpose, and his omission to use them was clearly his own negligence, and was the proximate cause of the injury. The court below so held. The plaintiff contends, however, that he is entitled to recover under the mining act of 1885, because (a) the mining boss had no certificate, as required by that act; (5) there was no proper person employed to “ see that, as the miners advanced in their [71] excavations, all loose coal, slate, and rock overhead were carefully secured against falling therein; ” and (e) no stretcher was kept at the mine, as required by said act. It is difficult to see, however, how a recovery can be had if none of these omissions was the proximate cause of the injury, or contributed to it. Conceding that the non-employment of a mining boss with a proper certificate, and the absence of a stretcher, were acts of negligence on the part of the company, yet it was negligence without results, and such negligence is never actionable, for obvious reasons. But the plaintiff contends that, even if the omitted acts were not the proximate cause of the injury, the defendant is nevertheless liable under the portion of the fifteenth section of the act of 1885, P. L. 217, which reads as follows: “ And if any accident shall occur, in any mine in which a mining boss or fire boss shall be employed who has no certificate of competency or service as required by this section, by which any miner shall be killed or injured, he or his heirs shall have a right of action against such operator, owner, superintendent, contractor, lessee or agent, and shall recover the full value of the damages sustained.” In' order to ascertain the true meaning of this section, we must consider the act as a whole. The seventeenth section, defining the liability of owners, etc., provides, inter alia, that “ for any injury to person or property occasioned by any violation of this act, or any wilful failure to comply with its provisions, a right of action against the party at fault shall accrue to the party injured for the direct damages sustained thereby,” etc. It is clear that no action will lie under this section unless the injury complained of was occasioned by a violation of the act. The construction contended for the fifteenth section can only be sustained upon the ground that it was intended as a punishment or penalty for the omissions referred to. But when we come to examine the twenty-first section of said act, we find the following: “ The neglect or refusal to perform the duties required to be performed by any section of this act, by the parties therein required to perform them, or the violation of any of the provisions or requirements hereof, shall be deemed a misdemeanor, and [72] shall upon conviction be punished by fine of not less than two hundred dollars and not exceeding five hundred dollars, at the discretion of the court; and, in default of such fine and costs for the space of ten days, the defendant shall be sentenced to imprisonment in the county jail for a period not exceeding six months.” In view of this highly penal provision of the act, we cannot treat the fifteenth section as also intended to impose an additional penalty, but must regard it as giving a right of action only when the injury is occasioned by a violation of the act, as is provided in the seventeenth section. The omission to provide a stretcher was clearly a violation of this act, and if there had been any sufficient proof that the plaintiff has sustained any pecuniary injury thereby, it might have been a ground of reversal. Judgment affirmed.