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Andriuszis v. Philadelphia & Reading Coal & Iron Co.

Supreme Court of New York, Appellate Division

March 10, 1911


APPEAL by the defendant, the Philadelphia and Reading Coal and Iron Company, from a judgment of the Supreme Court in

Page 608

favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 20th day of May, 1910, upon the verdict of a jury for $22,000, and also from an order entered in said clerk's office on the 19th day of May, 1910, denying the defendant's motion for a new trial made upon the minutes.


Pierre M. Brown, for the appellant.

M. Spencer Bevins [Isaac V. Schavrien with him on the brief], for the respondent.


Defendant is engaged in the mining of coal. Among the mines operated by it is one situated at Gerardville, in the State of Pennsylvania. On March 1, 1909, plaintiff was injured while at work therein. The statute of the State of Pennsylvania provides that 'in all actions brought to recover from an employer for injury suffered by his employe, the negligence of a fellow servant of the employe shall not be a defense where the injury was caused or contributed to by any of the following causes, namely: * * * the neglect of any person engaged as superintendent, manager, foreman, or any other person in charge or control of the works, plant or machinery; the negligence of any person in charge of or directing the particular work in which the employe was engaged at the time of the injury * * *; the negligence of any person to whose orders the employe was bound to conform, and did conform, and, by reason of his having conformed thereto, the injury * * * resulted.' (Laws of 1907, chap. 329.)

Plaintiff pleading such statute also pleaded that defendant failed to provide him with a safe place in which to work, with proper and suitable tools, implements and appliances; that defendant failed to properly instruct plaintiff as to the method to be pursued in doing his work and of the dangers incident thereto; that defendant furnished plaintiff with an insufficient number of fellow-servants; that defendant furnished plaintiff with incompetent fellow-servants, and that defendant failed and neglected to promulgate and enforce proper rules and regulations for the performance of such work, and sought to hold it responsible for his injuries. From a judgment in his favor and from an order denying a motion for a new trial this appeal is taken.

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Several important questions were presented upon the argument, some of which are novel. If there was any active negligence which was the proximate cause of plaintiff's injury, it was that of a miner named Adam Shukavage. Defendant claims that he was what is known as a 'contract miner,' one who is given a piece of work to do and paid by the yard as the result is accomplished. The contract miner furnishes his own laborers and they are paid by him. Although in the first instance the actual disbursement is made by defendant, the amount thereof is deducted from the sum which the contract miner becomes entitled to receive under his contract. Assuming this to be a correct statement of the relation of the parties, defendant contends that neither plaintiff nor Shukavage was in its employ, and that it owed to the former no active duty, and is not responsible for the negligent conduct of the latter. Defendant further contends that if the relation of master and servant did exist, if both plaintiff and Shukavage were in its employ, then they were fellow-servants. At common law the common master is not responsible to either for the negligence of the other. Defendant contends that the Pennsylvania statute above referred to does not alter this situation. Its argument may be thus summarized: First, such statute has no extraterritorial force, and is only made effective here by comity, for the reason that New York has a similar statute relating to employers' liability; second, Shukavage is not shown to have been within the terms of said statute either a foreman, superintendent or person in control; third, as the New York statute requires that employees who claim the benefit thereof shall serve a notice upon the employer within a prescribed time, stating the time, place and cause of the injury, comity does not require that the courts of this State shall extend the benefits of a foreign statute to cases where, as in the case at bar, no notice of a similar character was served; fourth, the complaint in this action does not in express terms allege any negligent act of superintendence on the part of any person engaged by defendant as superintendent, manager, foreman, or in charge and control of the works. Defendant still further contends that as the complaint attempted to state a cause of action at common law, and also one under the Pennsylvania Employers' Liability Act, the trial court erred in not compelling plaintiff to

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elect, at the close of the case, upon which cause of action he would go to the jury.

We think that it is not necessary to decide any of these questions, nor to review the greater part of the conflicting evidence in the case, in order to determine whether the verdict is against the weight thereof. Conceding for the sake of argument that both plaintiff and Shukavage were employees of defendant, that the position which the latter occupied was that of foreman in charge or control of the work, and that plaintiff is entitled to the full benefit of the Pennsylvania statute, we think that he cannot recover, for the reason that Shukavage's negligence was not the proximate cause of the injury which he sustained.

Plaintiff was a miner's laborer, and had been for more than two years. When he first went to work in defendant's mine he assisted a certified miner named Batitski. Another laborer, named Batitus, also assisted him. On the morning of the day of the accident Batitski, with Batitus' assistance, had drilled a hole about three feet deep for the purpose of blasting out what is known as a leg hole. In this it was the intention to place an upright timber, upon which rested a crosspiece known as a collar, to support the roof of the gallery or gangway in which they were working. In the hole which he drilled, Batitski placed a stick of dynamite with a fuse, and tamped it down, but for some reason the expected explosion did not take place. This was what is called a 'missed hole.' After this failure Batitski and Batitus, his helper, went home. The miners' work was done in two shifts, and in the afternoon Shukavage went to work in Batitski's place. He was told that there was a missed hole, and he started to remedy the difficulty. Plaintiff and Batitus were his helpers, and both knew of the conditions. There are two methods pursued by miners in the case of a missed hole, which is not an infrequent occasion. One method is to drill another hole about six inches or a foot from the first hole, charge that with dynamite and explode it. The force and concussion ...

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