On the 4th of August, 1913, the plaintiff, while at work for defendant, a foreign corporation, in its coal mine in Pennsylvania, sustained serious injuries. He brought this action to recover damages therefor on the theory that the same were caused by the negligence of the defendant. Plaintiff had a verdict for a substantial amount, upon which judgment was entered; and defendant appealed. The judgment was reversed and the complaint dismissed, upon the ground, as appears from the order of reversal, "that the plaintiff was not a bona fide resident of the state of New York and that the action should have been brought in the state of Pennsylvania." Plaintiff appeals to this court.
Personally, I am of the opinion, for the reasons stated in the order of reversal, that the complaint was properly dismissed upon the facts set out in the record.
The accident occurred in Pennsylvania. Plaintiff then was and for a long time had been a resident of that state. Defendant was organized under the laws of that state and there transacted business. Whether or not it be liable depends largely upon the construction and *Page 261 applicability of the statutes of Pennsylvania, where substantially all the testimony bearing upon the question of liability must be obtained.
The provision in the order of the Appellate Division, reversing the judgment and dismissing the complaint, above quoted, seems to me to be a finding of fact, or at least a mixed finding of fact and law. This finding was unanimously made and it cannot be said there is no evidence to sustain it. The court, therefore, in the exercise of its discretion, was justified in declining to take jurisdiction of the action, and in remitting plaintiff to the courts of Pennsylvania. A majority of this court, however, is of the opinion that it does not constitute a finding of fact, but is a conclusion of law, and that the Appellate Division was not justified, in view of the evidence adduced at the trial, in holding as matter of law that the plaintiff, at the time the action was commenced, was not a bona fide resident of the state of New York. The conclusion at which I have arrived makes it unnecessary to pass upon this question, since viewing the evidence in the most favorable light to the plaintiff it did not justify a finding that his injuries were caused by defendant's negligence.
In the defendant's mine there are two chambers, one practically underneath the other. Access to and from these chambers was by means of an elevator to the first chamber, then by walking through it to another elevator to the second chamber. In the first chamber there were several railroad tracks which, as they approached the first elevator, inclined slightly towards it. The coal mined was placed in cars drawn along the tracks by mules in charge of a driver. When the cars reached a few feet from the elevator the mules were unhitched and the cars spragged, which consisted of workmen known as spraggers inserting thick pieces of wood about two feet long between the spokes of the wheels of the cars. The spragging was done while the cars were in motion *Page 262 and the sprags inserted in the spokes of the two wheels on one side of the cars. The cars were moved along these tracks in trains, or what is described in the record as trips.
Immediately prior to the accident three cars had been moved along the track to within a few feet of the elevator, preparatory to putting them in the elevator and taking them to the surface. The car nearest to the elevator had been moved forward and while being pushed into the elevator it in some way became partially derailed. The plaintiff had been at work in the lower chamber. He took the elevator to the first chamber, walked through it and was standing by the side of the elevator when he was directed by the certified foreman of the mine to assist other employees in getting the car on to the tracks and pushing it into the elevator. While thus engaged, another employee hauled over these tracks, with three mules, a train consisting of seven cars loaded with coal. Such cars, in turn, were to be put into the elevator and taken up. Through the negligence of the driver of the mules, or the negligence of the person who was assigned to the duty of controlling the speed of the cars by spragging them, that train came in contact with the two cars left standing upon the track near the elevator with such force that the two cars were forced forward and thus the plaintiff was injured.
The fact was not disputed that there were plenty of sprags which could have been used and that the person assigned to do that work was a competent spragger, nor was the fact disputed that on account of the speed with which the mules were driven, due to the negligence of the driver, the spragger was unable to sprag all of the cars in the train. There was a conflict in the evidence as to whether the two cars standing on the track were spragged. The sprags had to be removed before the cars could be put into the elevator.
The trial court held if the accident were due to the *Page 263 negligence of the driver of the mules, the defendant was not liable, since he was a co-servant of the plaintiff and did not come within the exceptions mentioned in the statute. It also charged, to which an exception was taken, that if the accident were due to the fact that the two cars were not spragged, defendant was liable, since it was its duty, acting through its foreman, to see to it that these cars were spragged before placing plaintiff in the position he was in at the time he was injured.
I am of the opinion this exception was well taken. There is no doubt that the proximate cause of the injury was the negligence of the driver of the mules, or of the spragger assigned to sprag the cars in that train. There is no evidence whatever that if the two cars standing on the track had been spragged that the cars would not have been pushed forward precisely as they were. It is a mere guess or conjecture that if the two cars had been spragged the accident would not have occurred. The accident, it seems to me, was due solely to the negligence of the driver of the mules or to the negligence of the spragger or both and it was not questioned upon the trial that if that were the cause of the accident defendant was not liable. The jury was so instructed. Plaintiff's attorney accepted such instruction as the law of the case. Therefore, irrespective of whether the court ought to have taken jurisdiction of the action, I am of the opinion the Appellate Division was right in reversing the judgment and dismissing the complaint, even though it be conceded that the reasons assigned therefor were erroneous.
I vote to affirm the judgment of the Appellate Division.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND and ANDREWS, JJ., concur with CRANE, J.; McLAUGHLIN, J., reads dissenting opinion.
Judgment reversed, etc. *Page 264