Johnston v. Youghiogheny River Coal Co.

Negligence — Master and servant — Goal mine. In an action by parents against a coal company to recover damages for the death of their son, aged eighteen years, employed by defendant, a compulsory nonsuit is properly entered where it appears that the deceased while boarding an empty coal car in violation of defendant’s orders, was killed by striking his head against an electric trolley wire strung six feet above the track, and there is no evidence to show that the company was negligent in the construction or operation of the trolley wire and the cars.

Appeal, No. 151, Oct. T., 1897, by plaintiffs, from order of C. P. Westmoreland Co., Nov. T., 1896, No. 167, refusing to take off nonsuit. Trespass to recover damages for the death of plaintiff’s son. Before McConnell, J. At the trial it appeared that on March 19, 1896, Alexander Johnston, plaintiffs’ son, aged eighteen years, was killed in defendant’s coal mine, where he was employed as a miner. The testimony showed that at the time of the accident the deceased boarded an empty coal car to enter the mine, and struck his head against an electric trolley, wire strung six feet two inches above the track. Johnston was instantly killed by contact with the live wire. There was no evidence of any negligence on the part of the defendant in constructing or operating the trolley line or the cars. The empty cars in the defendant’s mine were propelled at a rate exceeding six miles per hour. A rule of the mine forbade miners to ride in empty cars when the speed of the cars exceeded six miles per hour. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was refusal to take off nonsuit. The company did not provide safe appliances: Vanesse v. Coal Co., 159 Pa. 403; Hoffman v. Clough, 124 Pa. 505; Mullan v. Steamship Co., 78 Pa. 25; N. Y., L. E. & W. R. R. v. Bell, 112 Pa. 400; Lewis v. Seifert, 116 Pa. 628; Payne v. Reese, 100 Pa. 301; Rummel v. Dil worth, 131 Pa. 509; Ross v. Walker, 139 Pa. 42; Stapleton v. Traction Co., 5 Pa. Superior Ct. 253; Weaver v. Iselin, 161 Pa. 386; McAdam v. Cent. Ry. & Electric Co. (Sup. Ct. Conn.), 35 Atl. Repr. 381. In erecting the electric system the defendant was not guilty of negligence. The fact of injury does not prove negligence: Tunney v. Carnegie, 146 Pa. 618; P. & R. R. v. Hughes, 119 Pa. 301; Erie & Wyoming Valley R. R. v. Smith, 125 Pa. 259. In an action by an employee against an employer the gist of the action is negligence, and the burden of proof rests on the plaintiff: Pittston Coal Co. v. McNulty, 120 Pa. 414; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Ford v. Anderson, 139 Pa. 261; Titus v. Bradford, etc., R. R., 136 Pa. 618 ; Moules v. Canal Co., 141 Pa. 632. The servant assumes the risks naturally and reasonably incident to his employment: Green & Coates St. Pass. Ry. v. Bresmer, 97 Pa. 103; Sykes v. Packer, 99 Pa. 465; Pittsburg & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276 ; Diehl v. Le-high Iron Co, 140 Pa. 487; Devine v. Reading Iron Wks., 109 Pa. 246; Sbaffers v. General Nav. Co., L. R. 10 Q. B. D. 856; Osborne v. Jackson, L. R. 11 Q. B. D. 619; Cashman v. Citase, 156 Mass. 842; Reese v. Biddle, 112 Pa. 72.