Opinion
December 10, 1915.
Pierre M. Brown, for the appellant.
David C. Hirsch [ John F. McIntyre and Joseph Levy with him on the brief], for the respondent.
Present — JENKS, P.J., CARR, STAPLETON, MILLS and RICH, JJ.
Judgment and order unanimously affirmed, with costs, on the opinion of CRANE, J., at Trial Term.
The following is the opinion of the court below:
There are a few things in this case undisputed which form the ground work upon which it is built. 1. While the plaintiff was working in the mine as directed by Shukavage, his immediate boss, an explosion occurred of sufficient violence to blow out both of his eyes. 2. The only substance there was in the place to explode was all or part of two dynamite charges. One dynamite charge had missed fire, and the second charge was placed about six inches from it. A discharge had taken place and the question is, had all the dynamite been exploded, or did the first charge or any part of it remain unexploded? 3. How was this to be ascertained? Rule 34 of the Anthracite Mining Law reads as follows: "Rule 34. Before commencing work and also after the firing of every blast, the miner working a breast or any other place in a mine, shall enter such breast or place to examine and ascertain its condition, and his laborer or assistant shall not go to the face of such breast or place until the miner has examined the same and found it to be safe." It was Shukavage's duty to examine and see that the place was safe before he ordered the plaintiff to work. 4. What examination did Shukavage make? He looked at the place and found it a good shot, but he does not testify that there was no dynamite remaining, nor does he say that he looked for unexploded dynamite. Whether or not he exercised reasonable care in making an inspection and examination is a question for the jury, even if his testimony were uncontradicted. The jury would have a right to draw such reasonable inferences as the established facts would warrant. That is, if dynamite had exploded and injured the plaintiff the jury were not called upon to believe this interested witness, even if he said that he examined and found both holes discharged. 5. For the negligence of Shukavage the defendant would be liable. ( Philadelphia Reading Coal Iron Co. v. Keslusky, 209 Fed. Rep. 197.) Shukavage was not a certified foreman within the rule of D'Jorko v. Berwind-White Coal Mining Co. (231 Penn. St. 164); but simply a licensed or certified miner, similar to licensed plumbers, engineers, etc., in this State. The testimony in this case is very different from what it was when before the court in 143 Appellate Division, 607, and 149 Appellate Division, 924. This is the first time that rule 34, above quoted, has been put in evidence. Such rule is not complied with as a matter of law by the person charged with the duty testifying that an examination was made and the shot was a good one. Again, on the former trial it did not appear that after a second discharge portions of dynamite sometimes remained unfired and might reasonably be expected to cause harm unless a good and sufficient scarch were made to see for a certainty that both charges had been fired. Shukavage was charged with a duty of ascertaining by a proper inspection that both shots had gone off. After the second shot had been fired he went in and looked at the place and ordered the plaintiff to work, when another explosion took place, injuring the plaintiff. The jury had the right to draw the inference that Shukavage had been neglectful in his examination and inspection. I feel, as does the defendant's counsel, that these cases should be tried in Pennsylvania, but our statute law — section 1780 of the Code of Civil Procedure — gives the plaintiff the right to bring his action here, and the court should, therefore, not permit the transportation of the case from Pennsylvania to this State to incline them to a strict and narrow view of the law. The plaintiff appears to have become a resident of this State, and if he has in good faith become a resident, the purpose of his coming here is immaterial so long as the Legislature has seen fit to open our courts to him. It is claimed by the defendant that Shukavage is not a vice-principal within the meaning of the Employers' Liability Act of 1907 of the State of Pennsylvania, but as Shukavage was the person in control of the plaintiff at the time and place in question, and by law and custom was not permitted to allow him to approach the place of explosion until an examination had been made, I think he was a vice-principal within the meaning of the act. Such has been the interpretation of a similar law of our own Legislature particularly modifying a prior statute so as to meet the narrow interpretation placed upon the law by the case of Guilmartin v. Solvay Process Co. ( 189 N.Y. 490).
Motion to set aside the verdict and grant a new trial denied.