Smith v. Stoner

Citations

• 243 Pa. 57
• 89 A. 795
• 1914 Pa. LEXIS 576

Syllabus

<p>Negligence — Mines and mining — Master and servant — Driver—■ Assumption of rish — Contributory negligence — Act of May 15, 1893, Article XX, Section 1, Bule 3; Article XXII, Section 1, P. L. 52 — Case for jury.</p> <p>1. Where the failure of a mine operator to comply with the Act of May 15, 1893, Article XX, Section 1, P. L. 52, Rule 3, which provides that all entries at “such places where road grades, necessitate sprags or brakes to be applied or removed shall have a clear level width of two and one-half feet between the side of car and the rib, to allow the driver to pass his trip safely and to keep clear of the cars,” results in injuries to an employee, such operator is guilty of actionable negligence, and the doctrine of assumption of risk is not applicable.</p> <p>2. A mine is not excepted from the provision of such act by Article XXII, Section 1 thereof, providing “provisions of this a.ct shall not apply to any mine employing less than ten persons in any one period of twenty-four hours,” where it appears from the evidence that when the entry was constructed twelve or thirteen men in each twenty-four hours were working in the mine, although there was no evidence as to how many men were employed when the accident occurred. After a mine has once been brought within the act, it is presumed to remain there until something appears to the contrary.</p> <p>3. In an action to recover damages for the death of plaintiff’s husband, a driver in a coal mine operated by defendant without a certified mine foreman, the case is for the jury and a verdict and judgment for the plaintiff will be sustained where it appears that the plaintiff at the time of the accident was working in an entry which had been cut under the personal supervision of the defendant; that the track had been laid therein by defendant’s servants, and that no room was provided on the right hand side of the track going out, and only a space of about three feet on the left hand side, which narrowed to six o