A car driver injured by reason of a car jumping the track because of a defective switch or the rails being insufficiently attached to the crossties, and the driver caught between the car and the face of the coal, because of insufficient space between the track or car and the face of the coal, is entitled to recover damages in an action against the mine operator on the ground of the failure of the operator to comply with the statute in providing sufficient space between the car and the coal face, where it appeared that the particular passageway had been opened and used for many months and the tracks laid and the cars operated thereon for more than eight months, and where the mine superintendent had knowledge of the condition of the track and the lack of space between the sides of the car and the coal face at the particular place where the injury occurred. Watson v. Monongahela River Consol. Coal & Coke Co., 247 Pa. St. 469, p. 477. The failure of a mine operator to provide a clear level width required between the side of the car and the rib to allow the driver to pass his trip safely is such a violation of the statute as to render him liable in damages for injuries to a driver caught between the car and the rib because of insufficient space. Smith v. Stoner, 243 Pa. St. 57, p. 62. 37. CONTRIBUTORY NEGLIGENCE QUESTION OF FACT. In an action for damages for the death of a car driver, killed by being caught between his trip and the rib of the mine, due to the lack of sufficient space as required by section one (article XX), a court can not adjudge as a matter of law that the deceased was guilty of contributory negligence, but under the circumstances of the case the question of the deceased's contributory negligence is one of fact to be determined by the jury. Smith v. Stoner, 243 Pa. St. 57, p. 63. See Cramer v. Aluminum Co., 239 Pa. St. 120, p. 125. Watson v. Monogahela River Consol. Coal Co., 247 Pa. St. 469, p. 473. In an action by a coal driver for damages for injuries caused by being caught between a car and the rib or coal face because of insufficient space, the questions of the assumption or risk and of the contributory negligence of the driver are questions of fact for the jury to determine. Watson v. Monongahelia River Consol. Coal & Coke Co., 247 Pa. St. 469, p. 476. Counizzari v. Snyder, 252 Pa. St. 877, p. 380. Protosenia v. Brothers Valley Coal Co., 251 Pa. St. 175, p. 181. Webster v. Monongahela River Consol. Coal & Coke Co., 201 Pa. St. 278, p. 285. An educated and experienced miner able to cope with mine dangers better than the average man assumes the risk of injuries from a fall of rock in the roof where for an appreciable length of time before the accident the condi tion of his roof of his room was so openly and plainly dangerous that a man of common prudence would not have worked under the roof until properly braced. Peters v. Vesta Coal Co., 243 Pa. St. 241, p. 246. 38. ASSUMPTION OF RISK-QUESTION OF FACT. Where a miner was directed to make a dangerous place safe, and had knowledge of the hazardous character of the place in which he was to work making it safe, he assumed the risks incident to the particular service and his employment under such circumstances was extra hazardous by reason of the dan gerous place in which the work must be done, and this being obvious to the miner or employee, he assumed the danger. Brisko v. Braznell Gas Coal Co., 223 Pa. St. 186, p. 193. The risk of danger to a car driver due the mine operator's failure to provide the required width between the coal cars and the rib or the coal face, in the mine of an established passageway and haulageway, is not a risk ordinarily incidental to the employment of a person as a driver in a mine. Watson v. Monongahelia River Consol. Coal & Coke Co., 247 Pa. St. 469, p. 476. See Smith v. Stoner, 243 Pa. St., 57, p. 61. Protosenia v. Brothers Valley Coal Co., 251 Pa. St., 251 Pa. St. 175, p. 191. An educated miner of twenty-one years' experience, who had served eight years as a pit boss and had worked in the defendant's mine for five months, and who admitted that he was more able to cope with mine dangers than the average man, can not recover damages against the mine operator for injuries caused by a fall of rock from the roof, where he had full knowledge and appreciation of the obvious and imminent dangers of his position and did not rely upon the superior judgment of the superintendent of the mine or on the superintendent's promise to supply him with the required timbers; and where within a half hour before he was injured some of the rock fell from the roof of his room and knocked some of the props out, and that such props were not so short that he would not hear the roof crack at the top should the roof start to fall and where he had the necessary tools at hand to utilize the props in the room that were immediately available to him, but made no effort to protect himself by properly setting any of such props, but preferred to continue work in the dangerous place until longer props were sent down. Peters v. Vesta Coal Co., 243 Pa. St. 241, p. 244. See Collins v. Northern Anthracite Coal Co., 241 Pa. St. 255. The peculiar possibilities of danger existing at a kick switch by reason of the bad condition of the tracks and because of insufficient space between the cars and the rib or coal face are not of such a character that it should be ruled as a matter of law that a reasonably careful miner was bound to anticipate an accident that would result in his injury and leave the service of the mine operator or incur the risk due to the condition. Watson v. Monongahela River Consol. Coal & Coke Co., 247 Pa. St. 469, p. 476. See Smith v. Stoner, 243 Pa. St. 57, p. 61. Counizzard v. Snyder, 252 Pa. St. 377, p. 380. Webster v. Monongahela River Consol. Coal & Coke Co., 201 Pa. St. 278, p. 285. Protosenia v. Brothers Valley Coal Co., 251 Pa. St. 175, p. 181. Where a mine operator is charged with negligence in his failure to perform a statutory duty, questions relating to assumption of risk do not arise. Price v. Etna Connellsville Coal Co., 42 Pa. County Ct. Rep. 667, p. 669. A miner who continues in the work of mining after he has knowledge of a dangerous condition existing in his working place is presumed to assume the risk of the danger, but this presumption is rebutted if the mine operator promises to repair the defect and the danger is not so obvious and imminent that negligence can not fairly be imputed to the miner for exposing himself to the danger. Dobra v. Lehigh Valley Coal Co., 17 Luzerne Leg. Reg. 337, p. 340. See Webster v. Monongahela River Consol. Coal & Coke Co., 201 Pa. St. 285. 125672°-20-47 A parent who permits his minor child to be employed in an anthracite coal mine may presume that the statutory requirements as to safety will be complied with and such parent does not assume the risk except to the extent to which it may be the attribute of the employment in its general character, and this is the risk that accompanies the employment when all the statutory requirements have been complied with. Dobra v. Lehigh Valley Coal Co., 17 Luzerne Leg. Reg. 337, p. 342. 39. ACTION FOR INJURIES-EVIDENCE-STATEMENTS OF INJURED PERSON. In an action for damages for the death of a driver who received the fatal injuries by being caught between his trip of cars and a rib in the mine, the statements of the injured driver as to the manner in which the accident happened are admissible in evidence as part of the res gestæ where it appears that the statements and declarations were made to the first person who appeared upon the scene and within a half hour after the accident and where the injured person, suffering intense pain all the time, was still lying upon the spot where he was hurt. Smith v. Stoner, 243 Pa. St. 57, p. 63. 40. MEDICAL ATTENDANCE TO INJURED MINERS-INVALID PROVISION. This act grants to laborers in coal mines in cases of personal injury the special privilege of medical attendance at the expense of the county, a privilege not granted to any other class of laborers. It is therefore class legislation and unconstitutional. La Ross v. Allegheny County, 22 Pa. County Ct. Rep. 360. This act grants to laborers in coal mines, in cases of personal injury, the special privilege of medical attention at the expense of the county, a privilege not granted to any other class of laborers. The act makes no provision for notice to the county commissioners or other persons, fixes no time or limit to the medical attendance, prescribes no mode of ascertaining whether the person injured is unable to pay for medical attendance, or how the expenses shall be borne by the county. The act authorizes the mine foreman to contract a debt against the county without the consent or authority of the county authorities. The act is in violation of the constitutional provision which prohibits the legis lature from passing any act granting special or exclusive privileges or immunities. La Ross v. Allegheny County, 8 Pa. Dist. Rep. 301. Rule 40 of Article XX does not shut off a county from all defenses in an action to charge it for the expenses of the medical treatment of an injured miner. The mine foreman is to see that the injured person receives medical or surgical treatment if he thinks it is required, but the county is not obligated to pay except in case of the inability of the injured person to do so. It can make no difference that this liability has been imposed upon the county instead of the poor district in which the miner resides, as the legislature has as much power to impose it on one as on the other. Read v. Clearfield County, 12 Pa. Supr. Ct. Rep. 419, p. 427. SFC. 7 of Article III of this act makes no provision for notice to county commissioners or any other person, fixes no time or limit to the medical attendance, and prescribes no mode of ascertaining whether the person injured is unable to pay for medical attendance or how the expense shall be borne by the county. It gives the mine foreman power to determine when medical treatment is neces sary, to call any doctor or surgeon he pleases to continue the treatment indefinitely, and to determine the inability of the injured miner to pay for the services. It authorizes a mine foreman to contract a debt against the county without the consent or knowledge of the county authorities. The legislature has no power to authorize any person to make such a contract against a county. La Ross v. Allegheny County, 22 Pa. County Ct. Rep. 360, p. 361. 41. DRAINAGE OF MINE-INSPECTOR'S ASSENT. The language of Article IX of this act does not exclude drainage by surface openings. There is nothing in section 3 which limits the drainage to drains beneath the surface, and it is within this section for an operator to remove the danger by surface drainage. Drainage of Mines, In re (Opinion of Attorney General), 27 Pa. Dist. Rep. 570. See McCune v. Pittsburgh & Baltimore Coal Co., 238 Pa. St. 83. There is nothing in section 3 of this act that would limit it only to draining water from mines which are in operation. To so limit the act would make it fall short of the protection of lives of the miners which the legislature intended to give. The accumulation of water in an abandoned mine is as dangerous to the lives of miners in adjoining mines as if both mines were in operation. Drainage of Mines, In re (Opinion of Attorney General), 27 Pa. Dist. Rep. 650, p. 651. Where the situation otherwise is such as to merit the approval by an inspector of the tapping or draining of a mine in which water has been allowed to accumulate in large and dangerous quantities, he should not withhold his approval because the mine in which the water has accumulated has been abandoned, or because the tapping is to be made by surface openings, or because the owner of the surface objects. Drainage of Mines, In re (Opinion of Attorney General), 27 Pa. Dist. Rep. 570. 42. CLAY VEIN-SPAR-FAULT. Within the meaning of this act a clay vein is an irregular fracture of the coal seam extending from the top to the bottom of the seam from an inch to several feet in width filled with clay and stone from above and may be vertical or sloping. A spar is a partial fracture of the coal seam, not extending to the bottom and filled with the same material as a clay vein. A fault exists where there is an imperfect joining of the coal stratum, the seam having been broken, leaving one section higher or lower than the other. Commonwealth v. Halbert, 42 Pa. County Ct. Rep. 545, p. 548. 43. CORONER-INQUEST-RETURN. When a coroner holds an inquest pursuant to a notice given under this act, the fact that such notice was given and the necessity for holding the inquest should appear in his return of the inquest. Coroner's Return, In re, 20 Pa. County Ct. Rep. 660, p. 662. 44. INSPECTION DISTRICTS. Under this act the bituminous coal regions were divided into twenty-one districts and a qualified inspector appointed for each by the governor. Bituminous Coal Mine Inspectors, In re, 39 Pa. County Ct. Rep. 124, p. 125, (Opinion of Attorney General.) 45. REPEALING EFFECT. This act contains a repealing clause of all acts inconsistent therewith and it necessarily repealed the act of June 30, 1885 (P. L. 205). Commonwealth v. Schulte, 13 Pa. Dist. Rep. 294. FOURTH GENERAL MINING LAW. LAWS 1911, P. 756. JUNE 9, 1911. AN ACT To provide for the health and safety of persons employed in and about the bituminous coal mines of Pennsylvania, and for the protection and preservation of property connected therewith. ARTICLE I. DEFINITIONS. SECTION 1. Be it enacted, &c., That for the purposes of this act, the terms and definitions contained therein shall be as follows: Mine. In this act the term "mine" includes the shafts, slopes, drifts, or incline planes connected with the excavations penetrating coal stratum or strata, which excavations are ventilated by one general air current, or divisions thereof, and connected by one general system of mine railroads, over which coal may be delivered to one or more points outside the mine, when such is operated by one operator. Excavations and Workings.-The term "excavations and workings" includes all the excavated portions of a mine, those abandoned as well as the places actually being worked; also all underground workings and shafts, tunnels, and other ways and openings, and all such shafts, slopes, tunnels, and other openings in the course of being sunk or driven, together with all roads, appliances, machinery, and material connected with the same below the surface. Shaft. The term "shaft" means a vertical opening through the strata that is or may be used for the purpose of ventilation or drainage, or for hoisting men or material, or both, in connection with the mining of coal. Slope. The term 'slope" means an incline or opening used for the same purpose as a shaft. Operator. The term operator means any firm, corporation, or individual operating any coal mine, or any part thereof. Superintendent.-The term "superintendent" means the person who shall have, on behalf of the operator, immediate supervision of one or more mines. Mine Foreman.-The term "mine foreman " means the person whom the operator or superintendent shall place in charge of the inside workings of the mine and of the persons employed therein. Inspector. The term "inspector" means the person commissioned by the governor to have supervision of mines, as hereinafter prescribed. Bituminous Mines.-The term "bituminous mines" shall include all coal mines in the State not now included in the anthracite boundaries; and whenever the term "mine" appears in this act it shall be construed to mean "bituminous coal mine." Approved Safety Lamp.-The term "approved safety lamp" shall mean any bonneted safety lamp approved by the Department of Mines. |