D'Jorko v. Berwind-White Coal Mining Co. , 231 Pa. 164 ( 1911 )

Opinion by

Mk. Justice Fell,

The plaintiff’s husband was killed by an explosion in the defendant’s mine where he was employed in operating a pneumatic coal cutter. The negligence alleged was in the failure to require the crew working at the place of the accident to use safety lamps and in not driving bore holes as required by the Act of May 15, 1893, P. L. 52. The provision of the act, relating to the use of safety lamps, applies only to mines where inflammable gases are found or a sudden inflow of gas is likely to be encountered and the requirement as to bore holes, only when the place is being driven towards or in dangerous proximity to an abandoned mine or a part of a mine “suspected to contain inflammable gases or which may be inundated with water.”

There was no proof that the mine was gaseous and no necessity for the use of safety lamps was shown. The testimony as to the necessity for driving bore holes was too meager and uncertain to sustain a finding for the plaintiff on that ground. It appeared from the testimony of the plaintiff’s witnesses, that they had worked in the mine for a number of years with open lights and that they had experienced no trouble from gas, and knew of none and that the escape of gas from an unused part of the mine to the place where the accident happened was merely a probability under certain conditions that were not shown to exist. But, even if the alleged negligence in failing to drive bore holes had been established, the negligence would have been that of the mine foreman, for which, as the learned trial judge correctly held, the mine owner would not be responsible.

The Act of May 15, 1893, P. L. 52, 61, takes the management of mining operations in bituminous coal mines out of the control of the owner and places it in the charge and control of a certified mine foreman, with whom the owner or his superintendent may not interfere. The employment of a mine foreman is made compulsory and his control of the underground workings of the mine is as full and absolute as that given to the foreman in anthracite mines by the Act of June 2, 1891, P. L. 176, and nothing is left to the judgment and control of the owner. In Durkin v. Kingston Coal Co., 171 Pa. 193, it was held in regard to the latter act, that a person injured by reason of the negligence of the mine foreman had no right of action against the owner of the mine for the reason that the state made the mine foreman its representative and vested in him the determination of all questions relating to the security of miners with power to compel compliance with his directions. This decision has since been approved and followed in a number of cases, among which are Golden v. Mt. Jessup Coal Co., 225 Pa. 164; Dempsey v. Buck Run Coal Co., 227 Pa. 571, which arose under the act of 1891, and Wolcutt v. Erie Coal & Coke Co., 226 Pa. 204, where the act of 1893 was considered. The underlying principle in these decisions is that an employer cannot be held responsible for the negligence of a person over whom he has no control and to whom, in all matters of judgment and direction in the management of his property, he is subordinated.

The employers’ liability act of June 10, 1907, P. L. 523, does not effect a change in the law as before announced. If the words “foreman or any other person in charge or control of the works” for whose negligence the employer is made liable and who in any action for death or injury is made the agent of the employer, apply to a representative of the state, certified by it to be competent, employed by its direction and placed in charge of the works, to carry out its instructions, the act would be unconstitutional. In view of the decisions upon the subject before the passage of the act, it should be assumed that it was not the legislative intent to include a class for whose negligence this court had held an employer cannot be made liable. The act should therefore be so construed as to limit its application to persons over whom an employer has control and who in fact represent him. This is as far as legislation can go.

The judgment is affirmed.