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Pa.)

HOOD V. CONNELL ANTHRACITE MINING CO.

ing as superintendent, the owner may be held liable for the consequences of such negligence.

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does not relieve the mine owner of his liability for the unsafe condition of his mine, except when he complies with the act. It does not relieve him if he has knowledge, through his superintendent, that the mine foreman is incompetent and that the mine

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 443; Dec. Dig. § 189.*] 4. MASTER AND SERVANT (§ 287*)-INJURIES TO SERVANT-ACTION-QUESTION FOR JURY. In an action for death of a miner, resulting from negligence of the mine foreman, is unsafe. whether the latter acted in the dual capacity of mine foreman and superintendent held a question for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1063, 1064; Dec. Dig. § 287.*]

Appeal from Court of Common Pleas, Sullivan County.

Action by Emma C. Hood against the Connell Anthracite Mining Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Trespass to recover damages for the death of plaintiff's husband. At the trial it appeared that Paul Hood, a certified miner, was killed on March 14, 1908, while working in defendant's mine. His death was caused by the falling in of the roof of one of the chambers. The plaintiff claimed that the accident was caused by the negligence of William E. Johnson as mine superintendent. There was evidence that Johnson, who was the mine foreman, was also employed as general superintendent of the mine.

The court charged in part as follows: "Now we are going to leave it to you, gentlemen, to say what the fact is as to whether William E. Johnson was employed in these mines solely in the capacity of a mine foreman, performing only the duties pertaining to that position, or whether, in addition to that, he was employed by and was acting for the defendant company in a representative capacity, other than the position of mine foreman-whether he was performing duties for the company, we say, in addition to his statutory duties, in the nature of supervising the work there, and such service as devolves upon the superintendent of the mine. If he was acting solely in his statutory capacity as mine foreman, then the company was not responsible for any negligence upon his part; and if you find that he was employed there simply as mine foreman under the statute, that is the end of this case, and the plaintiff cannot recover, and you need not consider anything else. If, however, you find that in addition to his statutory duties he was acting in a representative capacity for the company, performing additional and other duties for it, then you will consider whether the company has been guilty of such negligence as will authorize a recovery against it.

"The statute provides the remedy, and it is incumbent upon the owner when, through his superintendent, he finds the existence of unsafe conditions in the mine, to proceed

to have those conditions remedied in the manner pointed out in the statute; and if this man W. E. Johnson was acting for the defendant company in a representative capacity, in addition to his statutory duties

as mine foreman, then notice to him of the unsafe or dangerous condition of a place in which a miner was working would be notice to the company.

"If W. E. Johnson was acting in this twofold capacity that we have mentioned, as mine foreman under the statute and in a representative capacity for the company, then it was his duty, upon being notified of the unsafe condition of the roof, to take steps to remedy it."

Verdict and judgment for plaintiff for $4,750. Defendant appealed.

Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and MOSCHZISKER, JJ.

Seth T. McCormick and E. J. Mullen, for appellant. Chas. M. Culver, John G. Scouten, and David E. Kaufman, for appellee.

ELKIN, J. [1] If the rule applicable to bituminous mines, as laid down in Wolcutt v. Coal & Coke Co., 226 Pa. 204, 75 Atl. 197, applies to anthracite mines, then the question whether Johnson was acting in the dual capacity of mine foreman and superintendent was properly submitted to the jury. The learned counsel for appellant insist that there is a distinction between the act of June 2, 1891 (P. L. 176), regulating mining operations in the anthracite field, and the act of May 15, 1893 (P. L. 52), relating to bituminous mines, in so far at least as the duties of a mine foreman are prescribed. A careful examination of the two acts has satisfied us that there is no substantial basis for the distinction attempted to be made. It is a distinction without a difference, when the purpose to be served by the statutory requirements of each act is taken into consideration. Protection to the health and lives of those employed in mining operations is the primary purpose of both statutes. Indeed, the phraseology and provisions of both acts in many of their essential and important features are almost identical. Difference in "Now this act of assembly which provides mining conditions in the two fields required for the appointment of a mine foreman, and the legislation to be adapted to the necessiunder which the mining company is not re- ties of mining operations existing in each sponsible for the mine foreman's negligence, field. Aside from the provisions relating to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

of superintendent and mine foreman. This results in a divided responsibility, and may affect the question of liability in negligence cases. It has already led to an exception to the general rule pointed out by this court in Wolcutt v. Coal & Coke Co., supra. It is always safer and wiser for all concerned to follow the statutory rule which requires the underground workings to be in charge of the mine foreman.

these different conditions, there is but little, | authority. Again, mine owners in some inif any, real distinction between the anthra- stances, presumably to avoid expense, make cite and bituminous acts. As to the protec- use of the same person in the dual capacity tion intended to be afforded to the health and safety of the men so employed, the duties of the mine foreman are practically the same under both statutes. Certainly there are no such distinguishing features as to justify a court in laying down one rule for a mine foreman in the bituminous field, and an entirely different rule for a mine foreman in the anthracite region. After all, this is more a question of fact than of law. Both statutes clearly contemplate that the underground workings shall be under the exclusive charge and supervision of a mine foreman, and, when the mine foreman has the exclusive supervision of the inside workings, the owner is relieved from responsibility for anything that may occur in the mines. In other words, the mine foreman, with a certificate of competency from the commonwealth and a knowledge of the statutory duties imposed upon him, is answerable for the safe conduct of the mining operations. He should be, and in contemplation of law is, the absolute master of the interior workings of the mine over which he has charge as mine foreman.

[2] The character of his duties as mine foreman is not necessarily changed because he may hire or discharge men working under him, or suggest where and in what capacity the men shall work, or how the entries shall be driven or the mines be developed. He may do all of these things, and still be acting in his capacity as mine foreman. Indeed, if he is a competent mine foreman, which the law presumes him to be, he is better qualified to do all of these things than any one else.

[3] The test is, not the particular acts he may do in connection with the underground workings, but whether he has the charge, control, and supervision of these workings to the exclusion of any other authority. When he has this exclusive supervision, no one can dispute his authority as mine foreman, and even the owner cannot interfere with the performance of his duties. It is the duty of the mine foreman to see that all the statutory requirements intended to safeguard the health and lives of the men are properly enforced. What the law contemplates is not always done, and for this reason confusion sometimes arises on account of divided authority. It sometimes happens that the mine owner does not commit the exclusive charge of the interior workings to the mine foreman, but, acting through his superintendent, undertakes to exercise authority over certain parts of the interior workings without reference to the duties of the mine foreman. When this is done, the owner may be held liable for the negligent acts of his superintendent, or those acting under his direct

[4] However, when this is not done, questions of fact arise, which must as a rule be determined by a jury. In the case at bar we have concluded that whether Johnson acted in the dual capacity of mine foreman and superintendent was for the jury, and we discover no reversible error in its submission. We cannot agree that the act of May 29, 1901 (P. L. 342), changes the status of a mine foreman. There is nothing in the language used to indicate such an intention on the part of the Legislature. The questions of negligence and of contributory negligence, as well as the credibility of the witnesses, were all for the jury.

There are but two assignments of error, one that the learned court below erred in not giving binding instructions for the defendant, and the other in refusing to enter judgment non obstante veredicto for appellant upon the whole record. There is no assignment as to the manner in which the case was submitted to the jury, or as to any specific instruction given by the trial judge. We think the case was for the jury, and that all the questions involved in the controversy were fairly and impartially submitted.

Judgment affirmed.

(232 Pa. 14)

CRONMULLER v. EVENING TELEGRAPH. (Supreme Court of Pennsylvania. May 17, 1911.)

1. MUNICIPAL CORPORATIONS ($ 706*)-ACCIDENT AT CROSSING-QUESTION FOR JURY.

In an action against the owner of a wagon to recover for injuries received at a street crossing, question of driver's negligence held for the jury.

[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 706.*1 2. TRIAL (§ 143*)-CONFLICTING EVIDENCEQUESTION FOR JURY.

Where the testimony whether of plaintiff or of it he is entitled to go to the jury, and on the his witnesses is contradictory, and on one part other part he is not, it is for the jury to reconcile the conflicting statements and to say which shall prevail.

Dig. §§ 342, 343; Dec. Dig. § 143.*]
[Ed. Note.-For other cases, see Trial, Cent.

Appeal from Court of Common Pleas, Philadelphia County.

Pa.)

COMMONWEALTH v. CITY OF PHILADELPHIA

Action by William F. Cronmuller against the Evening Telegraph, Charles E. Warburton, Founder. From a judgment refusing to take off a nonsuit, plaintiff appeals. Reversed.

Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ.

Charles Hunsicker, J. Ernest Nachod, and Joseph W. Hunsicker, for appellant. W. W. Smithers, for appellee.

FELL, C. J. The plaintiff was struck by the end of the shaft of the defendant's delivery wagon while walking on a crossing from the foot pavement to a street car that was standing at a regular stopping place to receive passengers. The negligence of the driver was manifest. He was driving north on the east side of the street on which the car ran south. When 50 or 60 feet from the standing car he turned in front of it to the west side of the street and passed by the car in a space about 9 feet wide with his horse on a fast trot. He knew the car was stopped

to take on or let off passengers and that in all probability some one would be passing over

the crossing between the curb and the platform, yet, without exercising the slightest care for the safety of others, he came to the crossing from a place where a few seconds before he could not have been seen from the corner where the plaintiff stood. Persons using the public streets owe to each other the duty of reasonable care, and the duty of each is to be determined by the circumstances. The stop of a street car at a crossing is necessarily brief, and any person wishing to get on or off the car has but a few seconds in which to act, and, if delayed to allow a vehicle to pass, he may lose the opportunity to get on or off. The necessity for quick action on his part gives him a right to the use of the crossing that calls for the exercise of a very high degree of care by the driver of a vehicle.

In determining whether the plaintiff's negligence defeated his right to recover, the testimony was this: In his examination in chief, when he was stating what occurred in a narrative form, he said that he stood on the street corner waiting for a car running south. When the car was about stopped and the middle of it was opposite to him, he looked south and then north and saw that the way was clear in both directions; he then took three or four steps towards the car and was struck when within a step of it. On his cross-examination he testified that, when standing on the pavement at the corner, he did not look south but kept looking north.

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as he advanced would be quite as effective as looking before he started; but, if there was a contradiction that left the net result of his testimony in doubt, he was entitled to go to the jury. It was not in relation to something he was bound to prove to make out his case. He was not required to disprove contributory negligence, but only to make out a case clear of it, and if there was any doubt on the subject it was for the jury to resolve it.

[2] Where the testimony, whether of the plaintiff or his witnesses, is contradictory, and on one part of it he is entitled to go to the jury, and on another part he is not, it is for the jury to reconcile the conflicting statements and to say which shall prevail. Ely v. Railway Co., 158 Pa. 233, 27 Atl. 970; Glase v. Philadelphia, 169 Pa. 488, 32 Atl. 600; Danko v. Railways Co., 230 Pa. 295, 79 Atl. 511. Moreover, it must be borne in mind, in considering whether there was contributory negligence, that the car was standing at a and rapidly from the east side of the street, street crossing and the wagon came suddenly

its proper place in going north, to the west side. The plaintiff had little reason to apprehend the danger and no opportunity to

avoid it.

We think it was error to enter a nonsuit, and the judgment is reversed, with a pro

cedendo.

(232 Pa. 5) COMMONWEALTH ex rel. EARNEST v. CITY OF PHILADELPHIA et al. (Supreme Court of Pennsylvania. May 17, 1911.)

1. MUNICIPAL CORPORATIONS (§ 213*)-CIVIL SERVICE COMMISSION - REMOVAL OF CHIEF EXAMINER.

Under Act March 5, 1906 (P. L. 83), creating a civil service commission of the city of Philadelphia, and authorizing the appointment by such commission of a chief examiner, such officer has no power except that delegated to him by the commission, and where he disregards its directions or questions its authority he is guilty of insubordination justifying the commission in removing him.

Corporations, Dec. Dig. § 213.*] [Ed. Note.-For other cases, see Municipal

2. MANDAMUS (§ 187*) - REVIEW - FINDINGS OF FACT.

In mandamus against the civil service commission of a city to compel the reinstatement of the chief examiner who had been removed for insubordination, findings of fact of the lower court are conclusive.

Cent. Dig. §§ 427-437; Dec. Dig. § 187.*] [Ed. Note. For other cases, see Mandamus,

Appeal from Court of Common Pleas, Philadelphia County.

[1] This left in some uncertainty his posi- Application by the Commonwealth, on the tion when he looked but it did not contradict relation of William D. Earnest, for writ his statement that he looked south when the of mandamus against the City of Philadelmiddle of the car was opposite him. Looking phia and others to compel his reinstatement *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

to public office. From a judgment denying correct that his further continuance was the writ, relator appeals. Affirmed.

The court below (Sulzberger, P. J.) filed

the following opinion:

"The relator became chief examiner of the civil service commission on November 23, 1906, at a salary of $2,400 per annum. On September 4, 1908, the commission requested the relator to resign his office. He refused, and on September 8, 1908, was discharged. The prayer is for mandamus, directing that the relator be restored and that his salary be paid.

fore.

prejudicial to the public service. The im-
mediate cause of his discharge arose out
of the fact that the highway department
An examination of 40
needed inspectors.
applicants was held in April, 1908, only 14
of whom were placed on the eligible list.
On May 29, 1908, there was another ex-
amination of 22 applicants, only 3 of whom
were placed on the eligible list. The high-
way department needed inspectors.
is no absolute standard of knowledge fixed
by general law for the incumbents of this
office, nor does the civil service act set up
such a standard. It was enacted for an-

There

other and much deeper purpose; its plain intent being to exclude partisanship, favoritism, prejudice, and caprice from the appointment or removal of persons in public employment. To that end the applicants are to be compared with each other in a mode ing factors, and awards priority to the best

which eliminates these vicious and disturb

man. An inspector of highways ought to know how level a street should be, how con

re-crete

"The civil service commissioners in their return allege, in substance, that the relator, as chief examiner, failed in his duty in that he refused to mark the papers of applicants as directed by the commissioners; that his markings in many cases were unjust and inequitable; that his conduct was arrogant and insubordinate; that he refused to follow the advice, instruction, or orders of the commissioners; that on September 4, 1908, Henry Drake, one of the commissioners, in a letter to relator, stated the reason of the crete ought to be mixed, when a street needs latter's dismissal to be 'because of your re- repair, and other related practical things. fusal to follow out the directions that I The degree of expertness required is ordigave you under authority of the civil service nary and easily attainable by plain mecommission'; and that his dismissal was law-chanics with limited scholastic knowledge. ful. Whether it was or not is the ques- When, therefore, inspectors were wanted, tion in dispute. The act of March 5, 1906 the commissioners determined to relax some (P. L. 83) was passed to regulate and im- of the more ornamental requirements, such prove the civil service of the cities in the as correctness in 'punctuation and capitalifirst class in this commonwealth. Some zation,' meaning that a comma might be steps in that direction had been taken be- omitted or wrongly placed, and that a capIndeed, the 'act to provide for the ital letter written where there should have better government of cities of the first class been a small one, or vice versa, without in this commonwealth' (P. L. 1885, p. 37), detriment to the highway service. They so commonly known as the 'Bullitt Act,' con- instructed the relator. The latter, no doubt tained a rudimentary civil service law scat- with good intentions, not only objected, but tered in fragments through its several sec-wrote the letter of August 24, 1908. It was tions (article 3; article 12, §§ 2, 3; article 15), offensively insubordinate, in that it refused but did not provide for a civil service com- to obey directions received, declared that mission. By the twentieth section of the they were erroneous, and demanded a speact of 1906, it is provided that no officer, cific reiteration of them if he was to heed clerk, or employé appointed under the act them. Executive business cannot be promptshall be removed, discharged, or reduced ly and effectively carried on if the orders of in pay or position, except for just cause, the superior may, at the election of the inwhich shall not be religious or political, nor ferior, be made the subject of a protracted until he shall have been furnished with a argument. Nor is it for the good of the written statement of the reasons for such service that clerks, who are ready writers, action, and been allowed to give the remov- should pile up records of their wise dissent ing officer such written answer as the per- from the lawful orders of their chiefs. son sought to be removed may desire. In think that there was just cause for the reevery case of such removal or reduction, a lator's dismissal. copy of the statement of reasons therefor, and of the written answer thereto, shall be furnished to the civil service commission, and entered on its public records. The re-act. The relator contends that the requirelator contends that there was no just cause for his dismissal, and that in any event the dismissal was not in accordance with the requirements of the law.

"We have carefully weighed the evidence, oral and written, and have reached the conclusion that the relator was insubordinate,

We

"The question must still be considered whether the mode of dismissal was in accordance with the terms of the civil service

ments of the above-cited twentieth section were not complied with. We entertain grave doubts whether he is within its protection. The requirement that the statement and answer 'shall be furnished to the civil service commission and entered upon its public records' would seem to mean that

Pa.)

COMMONWEALTH v. CITY OF PHILADELPHIA

[ocr errors]

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city government must furnish these papers for appellant. T. D. Finletter and James to the civil service commission and appears Alcorn, for appellees. to have no reference to the proceedings of the commission itself. We have seen that the Bullitt act provided for civil service in a partial way, but left each department to administer it. The weakness of a law which left the appointing chiefs free to act without supervision or publicity soon became apparent. A separate body was needed, which, not having the power to remove or to appoint, might be relied on to supervise and to publish the facts concerning all the departments.

ment.

ELKIN, J. This is a mandamus proceeding to compel the reinstatement of appellant as the chief examiner of the civil service commission. He complains that his removal was without just cause and therefore illegal. He was removed on the ground of insubordination, which, if true in fact, was a just cause within the meaning of the law. Every subordinate should be respectful to his superior officers, and should be willing to discharge his duties as directed. In the admin"The circumstance that this civil service istration of civil service laws much must be commission needs a few examiners and left to those intrusted with their enforceclerks is of little importance in this connecThis is especially true of the civil tion; for, if it cannot be trusted to do so service commission which was created for little a thing as to act fairly by these, its the express purpose of regulating and enforcwhole activity would be merely worthless ing civil service in cities of the first class. and the purpose of the act would have fail- If the authority of the commission to regued. We need not, however, finally decide late its own affairs may be lightly challengthis point; for, if it be waived or overruled, ed by one occupying a subordinate position, we are of the opinion that the proceedings the effective enforcement of civil service in were entirely regular. The statute contem- other departments would be greatly weakenplates that the officer intending to remove ed. Nothing could be more demoralizing to a subordinate must furnish him with a writ- the public service than insubordination on ten statement of the reasons for such action, the part of subordinates in the discharge of their duties. There must be a head to everyand must allow him to give a written answer before he actually removes him. No work is well done without the thing. It may be assumed that such answer will direction of competent authority. The subusually deny the offense charged; but, wheth-ordinate may think he is wiser than his er it does or not, no mode of trial or fur- chief, and may honestly believe he knows ther proceeding is provided for, save that how to do the work better; but, so long as the statement and answer become public he occupies a subordinate position, his views must yield to those of his superior. Any other view would destroy efficient discipline without which there can be no such thing as orderly and well-regulated government. In this connection it may be well to glance at those provisions of the civil service act under which the chief examiner is appointed. Section 3 of the act of March 5, 1906 (P. L. 83), provides as follows: "The civil service commission in each city shall employ a chief examiner and such other clerks, examiners and employés as it may deem necessary or proper to carry out the purposes of this act." The salaries of the examiners and other em

records.

"In the case before us the commissioners notified the relator orally on September 4, 1908, that they would charge him with insubordination. On the same day he acknowledged this notice in writing. The commissioners sent a written reply to this letter on the same day, informing him that the reason for his discharge was his refusal to follow the commissioners' directions, and that his serv

There are no other

ices would not be required 'after Tuesday, September 8th.' This was a clear written statement of the commissioners' reasons, and it gave him four days' time to file his answer before their intended action would take ployés are fixed by the commission and apeffect. In point of fact, he prepared an elab- proved by the mayor. orate answer, sent it on September 8th, it provisions relating to these appointees. The was received and considered by the commis- act is absolutely silent as to what duties sioners, was declared by them insufficient. they shall perform, or the kind and characand they dismissed him on September 8thter of services they shall render. All of in a written communication. We think that the relator was not deprived of any of his privileges, and has no right to complain of

his dismissal.

"The prayer for peremptory mandamus is denied, and the petition is dismissed."

these things are left to the discretion of the commission so as "to carry out the purposes of this act." It seems perfectly clear that the Legislature intended the commission to exercise discretionary powers in the appointment of examiners and clerks and in the

Argued before FELL, C. J., and BROWN, regulation of the affairs of its own house

MESTREZAT, POTTER, STEWART, and
ELKIN, JJ.

Frank P. Prichard, Albert Smith Faught,
Robert D. Jenks, and Vivian Frank Gable,

hold.

[1] There is nothing in the act to indicate a legislative intention to give the chief examiner, or any other employé, the authority to do any act or thing except under the su

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