respect to liability for injuries received by employees in coal mines, where the mines are under the control and in charge of a certified mine foreman. Rafferty v. National Min. Co., 234 Pa. St. 66, p. 67. See Durkin v. Kingston Coal Co., 171 Pa. St. 193. D'Jorko v. Berwind-White Coal Min. Co., 231 Pa. St. 164. 7. OUTSIDE FOREMAN-NEGLIGENCE-LIABILITY OF OPERATOR. The work of providing a cage used for lowering and hoisting persons in a shaft with the proper covering is work which from its nature should be done outside of the mine under the supervision of an outside foreman. Such an outside foreman is not required to possess a certificate from the State authorities, as is the mine foreman, but he is the agent or vice principal of the employer and if his negligence causes an injury to a fellow servant the common employer is made responsible by the provisions of this act. Toole v Lehigh & Wilkesbarre Coal Co., 15 Luzerne Leg. Reg. 495, p. 499. 8. MINERS' RELIANCE ON JUDGMENT OF SUPERIOR CONTRIBUTORY NEGLIGENCE. A miner is not required to set up his own judgment against the mine operator or a foreman having charge of particular work, although he may question the safety of the undertaking and he may rely upon the advice of his superior and is justified in acting upon his orders. Fedore v. Lehigh & Wilkesbarre Coal Co., 16 Luzerne Leg. Reg. 449, p. 452. An employee directed by a person in charge of the work to hurry in its performance is not guilty of contributory negligence in obeying his superior. Fedore v. Lehigh & Wilkesbarre Coal Co., 16 Luzerne Leg. Reg. 449, p. 452. A miner directed by a person in charge of the performance of certain work, and who was directed “to hurry up" and go into the bottom of a shaft to remove an accumulation of ice, and who was assured by the person in charge of the work that he would attend to the signals and notify the engineer not to move the cage while the work was being done, can not be charged with contributory negligence in going, as he was directed, into the bottom of the shaft. Fedore v. Lehigh & Wilkesbarre Coal Co., 16 Luzerne Leg. Reg. 449, p. 451. A person selected by a mine owner and placed in charge and control of part of the work, though not called by name a manager, superintendent, or foreman, was, within the meaning of this statute, an agent of the mine operator and it is immaterial whether in the absence of the act he would have been a mere fellow servant. Fedore v. Lehigh & Wilkesbarre Coal Co., 16 Luzerne Leg. Reg. 449, p. 451. See Mingak v. Vesta Coal Co., 51 Pa. Supr. Ct. Rep. 584. 9. FELLOW SERVANTS-WHO ARE NEGLIGENCE NOT A DEFENSE. A miner and a hoisting engineer employed at the same colliery by the same mine operator are fellow servants within the provisions of this act. Golien v. Susquehanna Coal Co., 15 Luzerne Leg. Reg. 491, p. 492. While mines and mining are not mentioned in the act of June 10, 1907, yet the comprehensive words of the act include "all actions brought to recover from an employer for injuries suffered by his employees." The employers accordingly are within the provision that the negligence of a fellow servant of an injured employee shall not be a defense where the injury is caused or contributed to by any defect in the works, plant or machinery of which the employer can have knowledge by the exercise of ordinary care. Toward v. Meadow Lands Coal Co., 229 Pa. St. 553, p. 556. Under this act the negligence of a fellow servant shall not be interposed as a defense where the injury was caused or contributed to by the negligence of a person in charge of or directing the particular work in which the employee was engaged at the time of the injury. Counizzari v. Snyder, 252 Pa. St. 377, p. 381. This statute indicates that it was not the legislative intention to permit an employee to recover for injuries suffered through the negligence of a fellow servant in all cases, nor to make all employees the agents of the employer to the extent that he should be responsible for their negligence resulting in injuries to their fellow servants. The statute states the causes of injury arising out of the negligence of a fellow servant, for which the employer shall be liable, and the burden is upon an injured employee to show that his injury resulted from one of the causes expressed. Golien v. Susquehanna Coal Co., 54 Pa. Super. Ct. Rep. 299, p. 302. The words of this statute "any person engaged as superintendent, manager, foreman, or other person in charge or control of the works," are equivalent to and mean any person engaged as superintendent, manager, or foreman, in charge or control of the works, or any other person in like charge or control; but the idea of supervision and control pervades the entire clause. The person for whose negligence an employer is liable under this clause must be a person who has control of other employees with the power of direction. But it can not apply to a hoisting engineer whose duty it is to move the levers which control the hoisting cage and who has no authority to control any other employee and was not vested with any discretion as to how things should be done and did not give any orders but received them and obeyed the signals. Golien v. Susquehanna Coal Co., 54 Pa. Super. Ct. Rep. 299, p. 303. 10. MULE HOLES AS PART OF MINE. Mule holes in a mine are part of the works of the mine owner, made so for the purpose of preventing mules while not working from straying through the mine as walking dangers to persons operating mine cars. When mules are put in these holes without bars or gates to keep them in or posts to which they can be tied, the mine operator takes the risk that they will stray out and bring about collisions with moving cars. A failure to provide means by which the mules can be kept ⚫ within the holes is a failure of duty by the mine owner as an employer to his employee. A mule hole without gates or bars, or a hitching post or other devices provided by the mine operator by which the mules can be kept within it, is a "defect in the works," and a mine operator can not in the face of this act escape liability under plea of proof of the negligence of a co-employee of the deceased miner. Toward v. Meadow Lands Coal Co., 229 Pa. St. 553, p. 557. 11. REPEALING EFFECT. This act does not repeal the act of May 15, 1893 (P. L. 52), as to the effect of the employment of a mine foreman and as to the fact that a mine operator is not liable for the negligence of a mine foreman. Forrest v. Buffalo & Susquehanna Coal Min. Co., 39 Pa. County Ct. Rep. 47. Mahoney v. Summit Branch Min. Co., 40 Pa. County Ct. Rep. 430. See D'Jorko v. Berwind White Coal Co., 231 Pa. St. 164. Reeder v. Lehigh Valley Coal Co., 231 Pa. St. 563. EXPLOSIVES. STORING GUNPOWDER. 2 PA. STATS. AT LARGE, P. 162. OCTOBER 28, 1701. AN ACT for preventing accidents that happen by fire in the towns of Bristol (formerly called Buckingham), Philadelphia, Germantown, Derby, Chester, Newcastle and Lewes within this Government. [SEC. 1.] Be it enacted by the Proprietary and Governor by and with the advice and consent of the freemen of this Province and Territories in General Assembly met, and by the authority of the same [SEC. IV.] And be it further enacted by the authority aforesaid, That no person [sic] within the town of Philadelphia, after six months next following the publication hereof, presume to keep in their houses, shops or warehouses more than six pounds of gunpowder at one time, unless it be forty perches distant from any dwelling house, under the penalty of ten pounds for every such offense, to the use aforesaid, to be convicted in manner above expressed. STORING GUNPOWDER-BETTER SECURITY. 4 PA. STATS. AT LARGE, P. 30. AUG. 14, 1725. AN ACT for the better securing the city of Philadelphia from the danger of gunpowder. Forasmuch as the city of Philadelphia is destitute of any magazine or other suitable repository for the safe-keeping of gunpowder, which, being a commodity of good consideration in the trade of this province, the merchants and traders are frequently reduced to the necessity of keeping it on shipboard within the port of the said city or to deposit the same in the stores and shops, too often within the access of sailors and servants, to the manifest danger of the people of the said city in their persons and estates. And forasmuch as William Chancellor, of the said city, sailmaker, by the recommendation of divers of the magistrates as well as merchants and others of the said city, hath undertaken to build a suitable powderhouse or store for the receipt of all the gunpowder which shall or may be imported into the said city on a piece of ground he lately purchased from Daniel Pegg, lying near the north end of the said city adjoining to a swamp on the south side and upon the King's high road on the east end thereof: [SEC. I] Be it therefore enacted by Sir William Keith, Baronet, Governor of the Province of Pennsylvania, etc., by and with the advice and consent of the freemen of the said province in general assembly met, and by the authority of the same, That the said William Chancellor, his heirs, executors or assigns, shall at his and their proper costs and charges cause to be well erected and built a good, substantial, tight, and secure powderhouse or store for gunpowder, of brick or stone on the piece of ground aforesaid within three months next ensuing the publication of this act, to be well boarded and covered and so fit and capacious as may reasonably be expected will contain all the gunpowder to be from time to time imported into the said city, wherein he the said William Chancellor, his executors, and assigns, shall lay up and store all the gunpowder to be from time to time imported or brought into the said city which shall come to his or their receipt pursuant to the direction of this act, and for which he and they shall be accountable to the owners or deliverers thereof (lightning and other unavoidable accidents excepted), and shall also cause daily attendance to be given at the powder store aforesaid, betwixt the hours of nine and eleven in the morning and one and three in the afternoon, for delivering out the said commodity, and also at all times on due notice given for receiving thereof at the nearest and most convenient landing to the said lot of ground; and immediately upon his receiving into his custody any quantity of powder as aforesaid, he shall pass his receipts in writing for the same, expressing the quantity of powder and describing the marks and numbers of the cask. [SEC. II.] And be it further enacted by the authority aforesaid, That no person whatsoever within the precincts of the city of Philadelphia aforesaid nor within two miles thereof shall from and after the time the powder store aforesaid is so erected and finished presume to keep in any house, shop, cellar, store or place of the [said] city nor within two miles thereof, other than the powder store aforesaid, any more or greater quantity at any one time than twelve pounds of gunpowder under the penalty of ten pounds for every such offense. And whatsoever master, merchant or other person trading or bringing into the said port any gunpowder (other than such as shall be specially licensed in that behalf by the governor of this province for the time being, or shall be commissionated by the King's Majesty or other authority under the Crown of Great Britain) shall not within the space of forty-eight hours from his first arrival and coming to anchor there, upon due notice given him of the purport of this act by the said William Chancellor or his assigns or any of his or their deputies or servants, deliver all the powder so brought into the said port as aforesaid unto the said William Chancellor, his executors or assigns, shall forfeit the like sum of ten pounds for every such offense. [SEC. VI.] And be it further enacted by the authority aforesaid, That the clause in an act of assembly of this province (entitled An act for preventing accidents that may happen by fire in the town of Bristol, formerly called Buckingham, Philadelphia, Germantown, Derby, Chester, Newcastle and Lewes, within this government "), enacting that no person within the town of Philadelphia within six months next following the publication of the same act presume to keep in their houses, shops or warehouses more than six pounds of gunpowder at one time, unless it be forty perches distant from any dwelling, under the penalty of ten pounds for every such offense, is hereby repealed and declared null void, and of none effect, and that this present act shall continue in force for and during the term of twenty-one years and no longer. STORING GUNPOWDER-FIRST AMENDATORY ACT. I PA. STATS. AT LARGE, P. 52. MAY 8, 1747. CONFIRMED BY KING IN COUNCIL OCT. 29, 1748. AN ACT for the continuance of an act entitled "An act for the better securing the city of Philadelphia from the danger of gunpowder." WHEREAB, by the act, entitled "An act for the better securing the city of Philadelphia from the danger of gunpowder," passed the eleventh year of the reign of King George the First, it was amongst other things enacted, That William Chancellor, of the city of Philadelphia aforesaid, sailmaker, should, at his own expense, erect a good and substantial, tight and secure powderhouse or store for gunpowder at the place and within the time in the said act mentioned, so fit and capacious as might be reasonably expected to contain all the gunpowder to be from time to time imported or brought into the city aforesaid during the space of twenty-one years, the time of the continuance of the said act; and that the said William [Chancellor], his executors and assigns, should during the space aforesaid lay up and store all the gunpowder to be imported as aforesaid, and should for the storage receive the fees and perquisites and be under the restrictions and regulations in the said act contained. And whereas the said act hath for some time been expired, but the danger which may arise from gunpowder within the city aforesaid by the said act provided against as yet continues, and it is therefore necessary that the said act be continued until some further provisions shall be made for the like purposes: Therefore, at the humble request of Elizabeth Chancellor, acting executrix of the last will and testament of the said William Chancellor, deceased, on behalf of herself and her orphan brothers and sisters: [SEC. I.] Be it enacted by the Honorable George Thomas, Esquire, with the King's royal approbation lieutenant-governor and commander-in-chief under the Honorable Thomas Penn and Richard Penn, Esquires, true and absolute proprietors of the Province of Pennsylvania and of the counties of Newcastle, Kent and Sussex upon Delaware, by and with the advice and consent of the representatives of the freemen of the said province in general assembly met, and it is hereby enacted by the authority of the same, That the aforesaid act, entitled "An act for the better securing the city of Philadelphia from the danger of gunpowder," be and the same is hereby declared to be in full force and virtue. And that the said Elizabeth Chancellor, on behalf of herself and her brothers and sisters, shall be entitled to the same perquisites, fees and rewards for the storage of gunpowder, and other the premises in the act aforesaid mentioned, and be under the same regulations, restrictions and penalties as in the said act are contained and provided for the said William Chancellor, his executors and assigns, for and during the space of one year next ensuing the publication of this act, and from thence until some future [provision be made] by act of assembly and no longer. STORING GUNPOWDER-SECOND AMENDMENT AND REPEALING ACT. 12 PA. STATS. AT LARGE, P. 416. MARCH 28, 1787. RECORDED L. B. NO. 3, P. 199. AN ACT for securing the city of Philadelphia and the neighborhood thereof from damage by gunpowder. (SEC. I. P. L.) WHEREAS it appears that the act, entitled "An act for the better securing the city of Philadelphia and its liberties from danger of gunpowder," is in several respects defective: Therefore to remedy the defects thereof : (SEC. II. P. L.) [SEC. I.] Be it enacted and it is hereby enacted by the representatives of the freemen of the Commonwealth of Pennsylvania in general assembly met and by the authority of the same, That from and after the passing of this act no person shall keep in any house, store, shop or cellar or other place within the city of Philadelphia nor the country adjacent within two miles of the said city, except in the public magazine in the square to the south of Vine Street, between Sixth and Seventh Streets of the said city, any greater quantity of gunpowder at one time than thirty pounds weight thereof under the penalty of forfeiture of the whole quantity so over and above stored or kept, together with the sum of twenty pounds for every such offeuse. |