Lehigh & Wilkes-Barre Coal Co. v. Sawickas

247 F. 432, 159 C.C.A. 486, 1917 U.S. App. LEXIS 1682

• Court: Court of Appeals for the Second Circuit
• Decided: November 13, 1917
• Docket: No. 43
• Status: Published

Opinions

HOUGH, Circuit Judge

(after stating the facts as above). [1] We • assume the facts to be as related by the plaintiff below. The action as brought depended, not only upon general rules of law, but on the Employers’ Liability Act and mining statutes of Pennsylvania. Of these statutes it is enough to say that none of them makes of the employer or mine owner an insurer. Plaintiff was obliged to prove affirmatively as a prerequisite for recovery that defendant below had been guilty of some actionable negligence.

The complaint herein was supplemented by a bill of particulars, and on turning to that document, to ascertain the sort or kind of negligence of which defendant complains, we find but one allegation which, in the fight of Sawickas’ own story, needs consideration. The bill asserts in a variety of ways that it was negligent to permit, and not to prevent, plaintiff below from using an iron or steel tamping bar without a copper or other soft metal head.

Assuming for argument’s sake that any such duty lay upon the defendant below, it is still necessary to find some causal connection between the use of an uncapped tamper and the explosion producing injury. The plaintiff’s theory (and the word is used advisedly) is that the steel tamper must have struck “sulphur,” thereby produced a spark, which spark ignited the cartridge and caused the explosion, and that this train of circumstances happened in a damp hole, and had never anywhere happened before to the knowledge of plaintiff, or (it may be added) of any one else who testified herein.

But let it be assumed that the plaintiff below was injured because he was putting in a blast in an improper manner, and especially with an improper tool, that in so doing he did strike a spark, and as a consequence thereof received the injury comjffained of. He was a certified miner, not only a proper person, but the only kind of person lawfully authorized to do the work he was doing. He had been used to this labor for years, and if it be true that sparks may be produced from damp rock by blows from a steel tamper, he for years had had opportunity of learning the truth about the matter, larger than that of all except other miners. Knowledge of such dangers was part of a miner’s equipment for his- work, and to ascertain and remember the fact required nothing but ordinary judgment and common observation.

A master is .not bound to warn a servant of dangers so patent as to be readily observed by the reasonable use of the senses, considering the age, intelligence, and experience of the observer. Chicago, etc., Co. v. Shalstrom, 195 Fed. 725, 115 C. C. A. 515, 45 L. R. A. (N. S.) 387; King v. Morgan, 109 Fed. 446, 48 C. C. A. 507; Lindsay v. New York, etc., Co., 112 Fed. 384, 50 C. C. A. 298; Crawford v. American, etc., Co., 123 Fed. 275, 59 C. C. A. 293. A knowledge of danger may be presumed from the servant’s “abundant opportunities of observation” (Fletcher v. Traction Co., 190 Pa. 117, 42 Atl. 527), and the court may draw such inference (Borck v. Michigan, etc., Works, 111 Mich. 129, 69 N. W. 254). Knowledge of a trade, gained by working thereat, compels a servant to assume the patent dangers thereof, just as fully as does knowledge gained by teaching or instruction in its ordinary sense. Brotzki v. Wisconsin, etc., Co., 142 Wis. 380, 125 N. W. 916, 27 L. R. A. 982.

. 12, 3] The rule charging a master, under many circumstances, with the consequences of his servant’s using an unsafe contrivance, does not apply when the cause of hurt is not furnished by the master, who is not charged with the duty of providing the same. McKean v. Colorado, etc., Co., 18 Colo. i4pp. 292, 71 Pac. 425, and cases cited. One who holds himself out as skilled in a trade, and thereby procures employment, cannot hold his employer liable for failure to instruct him in a matter he must be assumed to know, in order successfully to pursue that trade. Hammond v. Union, etc., Co., 136 App. Div. 102, 120 N. Y. Supp. 652. Since there is no proof that the master knew of the alleged danger in Sawickas’ tools or methods, or that such danger was so notorious that knowledge thereof must be imputed, such decisions as Griffiths v. London, etc., Co., L. R. 12 Q. B. Div. 495, McGowan v. La Plata, etc., Co. (C. C.) 9 Ped. 861, and Mather v. Rillston, 156 U. S. 391, 15 Sup. Ct. 464, 39 L. Ed. 464, do not apply.

While holding, as above indicated, that defendant below had a right to rely upon this certified miner’s knowledge of the matter suggested as the cause of injury, it is also true that, if the accident happened in the way and for the cause necessarily found by the jury, such cause of injury was an unusual and therefore unheard of incident; anil the proofs, so far from, showing that spark danger with a loose cartridge and a damp hole was usual, make it plain that it could not have been warned against because no one had ever heard of such a thing happening. To predicate negligence on lack of a warning not based on either experience or observation is, we think, unheard of.

It is urged that rule 30, supra, was violated by the use of the tamping bar without a soft metal head. But this rule applies only to instances where a “tight cartridge” is being rammed into a hole. The cartridge in this instance was not tight, and the rule inapplicable.

Finally, it is suggested that defendant is liable because it did not have the statute and rules posted in compliance with the rule, supra. Of this contention it may be observed (1) that in response to appropriate interrogatories no such charge of negligence is contained in the bill of particulars; (2) since the cartridge was not tight, there was no violation of the rule, and the injury could not have flowed from a failure to post rules which were not violated; (3) plaintiff does not testify that the rules were not posted, but: only that he had not seen them. This is unavailing against uncontradicted evidence that they were posted in several places in compliance with the statute.

A verdict should have been directed for defendant below. Judgment reversed, with costs.