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[233 U.S. 184, 185] Messrs. Charles K. Robinson, Edward C. Goodwin, and Frank H. Kennedy for petitioner.
Messrs. Don Rose and Charles Marshall Johnston for respondent.
Mr. Justice Day delivered the opinion of the court:
Annie Myers brought an action in the United States circuit court for the western district of Pennsylvania to recover for the death of her husband, John Myers, alleged to have been caused by the negligence of the defendant, the Pittsburgh Coal Company. Under the law of Pennsylvania she might bring this action for the benefit of herself and minor children. A verdict was rendered against the Coal Company; on writ of error the case was reversed by the circuit court of appeals for the third circuit (121 C. C. A. 427, 203 Fed. 221), and it was brought here on writ of certiorari to that court.
The circuit court of appeals was of the opinion that upon the facts shown the plaintiff had not made out the right to recover, and the judgment was reversed without directing a new trial, and without sending the case back to the district court, which had succeeded to the jurisdiction of the circuit court, for that purpose. This was error within the doctrine of Slocum v. New York L. Ins. Co. 228 U.S. 364 , 57 L. ed. 879, 33 Sup. Ct. Rep. 523; Pedersen v. Delaware, L. & W. R. Co. 229 U.S. 146, 153 , 57 S. L. ed. 1125, 1128, 33 Sup. Ct. Rep. 648, 3 N. C. C. A. 779. It is further contended that, apart from the question just noticed, the circuit court of appeals erred in reversing the judgment of the district court, as it did, upon the ground that there was not sufficient testimony in the case to show that the deceased came to his death by the negligence charged in the petition. To determine this question involves a brief consideration of the facts in the case. [233 U.S. 184, 190] John Myers, at the time of his death, was, and for several months had been, in the employ of the Coal Company as 'snapper' or brakeman in underground operations, taking part in the movement of cars in and about the mine. It appears that on the morning of the injury, a train of empty coal cars, some thirty or forty in number, was being taken down the main entry and then further down a side entry into the mine, where the cars were to be subsequently distributed in the work. The manner of operation was that empty cars were hauled by a large electric motor car down the main entry to a side entry where a flying switch was made by which the motor car continued in the main entry beyond the junction of the side entry, and the cars ran down the side entry for a considerable distance, then, upon signal from Myers, whose duty it was to ride upon the rear car of the train, by the waving of his cap, which contained a lamp, or by the movement of his head with cap on, the motor car followed on down the entry, the purpose being to overtake the empty cars and distribute them in the mine. Down the side entry, about 157 feet from the main entry, was an automatic switch, which would turn the current into the trolley wire and permit the motor car to proceed farther into the mine. It was not working properly, and the motorman alighted and turned the switch by hand, returned to the motor car, and proceeded. Up to the time the motor car reached the automatic switch Myers had been seen signaling for the motor car to come on. Some distance further there was a branch of the trolley system running into another entry, and the trolley wire passed over the tracks in the side entry at a distance of about 5 feet, 7 1/2 inches above the rail, making it necessary for one of ordinary height to remain seated in the car or to stoop down. The roof of the entry was about 9 feet above the rail at this point. There was no light at this switch, nor was the wire guarded in any [233 U.S. 184, 191] way. It also appears that because of ineffective carbons the headlight on the motor car was not burning, and had not been burning for several days; that requisition had been made upon the superintendent of the mine for new carbons, but that there were none at the mine. The motorman testified that when the headlight was burning he could see objects on the track clearly at a distance of 25 or 30 yards, and that the could stop his car in about 13 feet. Continuing on from the switch, as we have said, the motor car suddenly ran upon something, was stopped, and it was found that Myers had been run over. He was lying in the middle of the track with his head toward the motor and his cap, upright, with the light still burning, was lying beside the track. Myers' body was badly torn and mangled before the motor car could be stopped. His tongue was found to be moving, but he shortly died from his injuries. It was also shown that Myers was a man of unusual strength and vigor, twenty-nine years of age, and to all appearances in full health and strength shortly before the injury.
The trial court submitted the case to the jury to determine whether the defendant had failed to discharge its duty of using reasonable care to provide a proper and safe place for Myers to work; that is, in failing to provide adequate lights at a dangerous place, and permitting the motor car to be operated without the headlight, and also in permitting an exposed live trolley wire to cross the main track at insufficient elevation. An inspection of the record satisfies us that there was testimony enough in the case to carry these questions to the jury under the instructions which were given. The duty of the master to use reasonable diligence to provide a safe place for the employees to work, to carry on the occupation in which they are employed, is too well settled to require much consideration now. This duty is a continuing one, and discharged only when the master provides and maintains a place of that [233 U.S. 184, 192] character. Baltimore & P. R. Co. v. Mackey, 157 U.S. 72, 87 , 39 S. L. ed. 624, 629, 15 Sup. Ct. Rep. 491; Union P. R. Co. v. O'Brien, 161 U.S. 451 , 40 L. ed. 766, 16 Sup. Ct. Rep. 618; Choctaw, O. & G. Co. v. McDade, 191 U.S. 64 , 48 L. ed. 96, 24 Sup. Ct. Rep. 24, 15 Am. Neg. Rep. 230; Kreigh v. Westinghouse, C. K. & Co. 214 U.S. 249, 255 , 53 S. L. ed. 984, 987, 29 Sup. Ct. Rep. 619. Under the case made, the jury might well have found that the overhead wire was hung too low for the safety of the men; that there was want of adequate light at this place; and that it was negligence to run the motor car into such a place without the light which it was its duty to provide. Where workmen are engaged in such mines in occupations more or less hazardous, it is the duty of the master to exercise reasonable care for their safety, and not to expose them to injury by use of dangerous appliances or unsafe places to work, when the exercise of due skill and care will make the appliances and places reasonably safe. Choctaw, O. & G. R. Co. v. McDade, 191 U.S. 66 , 48 L. ed. 99, 24 Sup. Ct. Rep. 24, 15 Am. Neg. Rep. 230; Kreigh v. Westinghouse, C. K. & Co. 214 U.S. 256 , 53 L. ed. 988, 29 Sup. Ct. Rep. 619.
The opinion of the circuit court of appeals placed the reversal largely upon the want of definite proof as to the manner in which Myers came to his death,-whether by contact with the wire, or, if so, whether that merely disabled him or he was only injured or stunned by the fall, was seized with vertigo or other sudden sickness and fell from the car for that reason, or lost his footing by some unexpected movement of the train, or voluntarily got off the car and stumbled and fell upon the track, or became bewildered in the dark, and mistakenly supposed himself to be in a place of safety. The court held that all these situations were more or less probable, and, in the absence of some more accurate means of ascertaining the true condition in this regard, no recovery could be had for the wrongful causing of his death, and that an examination of the testimony brought the court to the conclusion that the jury should not have been permitted to guess as to the proximate cause of death. This question, however, was submitted to the jury and found against the defendant in [233 U.S. 184, 193] the trial court. Unless the testimony was such that no recovery can be had upon the facts shown in any view which can be properly taken of them, the verdict and judgment of the district court must be affirmed.
That there was ample testimony to carry the question of negligence to the jury we have already said, and in any case it cannot be said as a matter of law that there was no evidence tending to show that Myers came to his death by the negligence of defendant in one or more of the ways charged in the petition. Considering the testimony, as it must be considered in determining questions of this character in appellate courts, in its most favorable aspect to the plaintiff below, we think the jury might well have found, in view of the place at which the body of Myers was found near to the wire, with his cap gone from his head, that he came in contact with that wire and was thrown to the ground, and that he survived from contact with the wire, carrying the voltage which it did, and while in this situation was run over and killed by the approaching motor car, the operator being unable to see his body upon the track because of the want of efficient light in the entry or in the motor car. We think reasonable men, considering the testimony adduced, might well have come to this conclusion, and that it was error in the appellate court to set aside the verdict for entire absence of testimony upon this subject. In our opinion, the trial court properly left the question to the jury upon testimony which, when fairly considered, might sustain the verdict. See Humes v. United States, 170 U.S. 210 , 42 L. ed. 1011, 18 Sup. Ct. Rep. 602.
As to the contention that the trial court erred in refusing to give the instruction requested by the Coal Company to the effect that the equipment and operation of the electric haulage plant and all persons employed in the mine were in charge and subject to the orders and direction of a duly qualified mine foreman, and that, if decedent's death occurred by reason of negligence, such negligence [233 U.S. 184, 194] was that of the mine foreman, and the Coal Company could not be held liable: The record shows that there was testimony tending to show that the electrical system was in charge of the electrician of the Coal Company employed as superintendent of electrical equipment, who had charge of the purchase, installation, care, operation, and maintenance of the electrical equipment used by the Company, and who was not subject to the mine foreman. The court submitted to the jury the question whether the Coal Company had committed to the mine foreman the electric system of hauling in the interior of the mine, or whether such system was in charge of an electrical engineer not accountable to the mine foreman, distinctly telling the jury that if the mine foreman was in charge in this respect, the company would not be responsible, but if they found that the Coal Company had excluded from the control of the mine foreman the electric haulage system, and that the negligence of the Coal Company was the direct and proximate cause of the death of the plaintiff's husband, there must be a recovery. The charge in this respect was as favorable as the company was entitled to have given.
As to the objection that the court erred in failing to give the instruction requested by the defendant concerning the operation of the automatic switch, to the effect that if it did not work on the trip on which the decedent was run over, and even if it was out of order, those conditions would not contribute to the running over of the decedent by the motor car or to his death, it is sufficient to say that the court in its charge to the jury did not submit a question of negligence specifically concerning this automatic switch and its effect if out of repair, and to have affirmed this point by giving it to the jury would only have served to possibly confuse the jury upon a point immaterial to the plaintiff's recovery, in view of the manner in which the case was given in charge to the jury. [233 U.S. 184, 195] We have examined the charge and the exceptions thereto and requests for instructions, and are of opinion that the trial court fairly submitted the questions involved to the jury in a charge to which there was no substantial objection.
As to the suggestion that the deceased had assumed the risk of the want of proper appliances and the defective character of the light at the place in which he worked and was injured, we do not find that the court was requested to make any charge upon that subject, or that any exception was taken to the court's failure to charge as to assumption of risk. In that state of the record, the appellate court was not called upon to consider that question. See Humes v. United States, supra. The circuit court of appeals reversed the case for the reason, which we have stated, that there was an entire failure of adequate testimony to show that Myers came to his death by the negligence of the company in the manner charged. As we have said, we think that was an erroneous conclusion.
It follows that the judgment of the Circuit Court of Appeals must be reversed, and the judgment of the District Court affirmed, and the case remanded to that court.
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