Layzell v. J. H. Somers Coal Co.

Hooker, J.

( dissenting). The plaintiff was injured by being raised in defendant’s mine hoist, and dumped over the “ tipple.” The cause was the shifting a lever in the wrong direction through mistake, by defendant’s employe in charge of the hoist. The plaintiff was seriously hurt, and charges negligence upon the defendant. Our statute, Act No. 100, Pub. Acts 1905, is relied upon. The title of the act to which it was amendatory was:

“An act to provide for the protection of the health, lives and interests of the coal miners of Michigan, and to provide for the inspection of all coal mines in this State.”

Section 3 provides:

“That only a competent and trustworthy engineer shall be permitted to operate the cages and hoising devices in all coal mines of this State.”

Section 36 provides:

“Any owner, part owner, operator, manager, or superintendent of any such coal mine, or director or officer of any stock company owning or operating any such mine, who shall wilfully violate any of the provisions of this law by omitting to comply with any of its said provisions, after a reasonable length of time after notice of such omission, by the State mine inspector shall, if not otherwise provided for, be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished,” etc.

The negligence relied upon is the failure of the defendant to employ “a competent and trustworthy engineer” to operate the hoist, and counsel say in their brief:

‘ ‘ Our position in this case is that, under the evidence, the *274sole question and issue was and is the competency of Saunders. The statute imposes a specific duty to provide at this post a competent and trustworthy engineer. If the man Saunders was in fact incompetent and untrustworthy, either or both, the plaintiff was entitled to recover. Under this statute it is no defense to say defendant had no notice or knowledge of such incompetency or untrustworthiness. It is no defense to say that plaintiff had knowledge of such incompetency and should have imparted that knowledge to defendant. It is no defense to claim that plaintiff assumed the risk of negligence of a fellow-servant. All of these questions, we assert, were eliminated from the case by the effect and operation of the statute, and that therefore the manner and cause of the injury not being disputed as being the negligent act of Saunders, not in any wise contributed to by any want of care on the part of plaintiff or the other man in the cage, or any defect in the machinery, and there being positive evidence in the case of the incompetency of Saunders at and before the time of the injury in this employment, the case should have been submitted to the jury.”

Plaintiff’s counsel claim, first that there was evidence showing that Saunders was not an engineer and therefore that the jury might find that defendant had not complied with the statute and was liable. They also claim that there was evidence that Saunders was incompetent to run the elevator, and that he was a man who habitually made use of intoxicating liquor while at work, which tended to show untrustworthiness. As indicated by the quotation from the brief, it is plaintiff’s claim that the statute imposed-a positive duty to secure a competent and trustworthy engineer, at the master’s peril.

The statute in question should not be held to impose upon the mine owner the obligation of infallibility in the selection of employés unless we are prepared to say that it was intended to make him an insurer. It may reasonably be held that it was the legislative design to require the employment of an engineer, — competent and trustworthy, but we see no indication of an intention to abrogate the general rule that only reasonable care and diligence in ascertaining the qualifications are required, to re. *275lieve from the charge of negligence. The case of Mulhern v. Coal Co., 161 Pa. 270, is substantially on all fours with this case, the statute in that State being very similar to our own. It was there held that it had not the effect to change the common law relating to negligence in the employment of men. Apparently the statutes are from a common source, if our statute was not framed upon the Pennsylvania model. This construction was practically given in the Walkowski Case, 115 Mich. 629 (41 L. R. A. 33).

The defendant offered testimony tending to show that Saunders was a competent engineer when he was hired. Its officers made inquiries regarding his habits, competency, and trustworthiness. Rolfe, Saunders’ stepson, himself a man of experience with engines, told them that Saunders had fired and run an engine at Coleman, and fired in a saw mill; that he claimed to be an engineer, had run an engine all his life, and that he personally knew he had run an engine two years; that he was a straight, reliable man, and he considered him all right. This witness understood that it was the general custom for the head fireman to run and operate the cages or hoists at night. Beecher, defendant’s officer who hired Saunders, testified that he knew Saunders 18 months before hiring him, and before he hired him he talked with Mr. Rolfe, a relative of Saunders, about his age, experience, and strength, and was told that he was steady, reliable, and experienced, and had run a locomotive. When Beecher employed him, he first set him at work as assistant fireman. He worked satisfactorily at that for two or three months, and then he made him head fireman, “his duties as head fireman to be first engineer as much as anything else.” He was held responsible for the operation of the plant at night. He ran the engines for the fans to ventilate the mine, one for the generator, and one for the hoist, and he did this for at least 14 months before the accident. He did this under Beecher’s supervision, who never discovered anything wrong with him and never heard any com*276plaints. We discover no contradiction in the testimony in relation to defendant’s care. The only evidence which is offered upon the subject of Saunders’ competency and trustworthiness, is that of two other employés who said that he had a bad reputation among the men, and that he used intoxicating liquor while at work, but both admitted that they did not inform defendant’s officers of it, which they would perhaps be unlikely to do, as they belonged to the same union with the plaintiff. Of the two who did testify that they thought him unfit, one gave the reason that he was “nutty,” which he explained to mean had mad fits. This witness said he had spoken about it to other employes, but never to any representative of the company. The other told what .some shift boss had said when told of the accident, which was hearsay testimony, not admissible. It was also said that he sometimes let the cage strike the ground hard, but no one seems to have informed the officers of that. I am of the opinion that the uncontradicted testimony showed an absence of any negligence in the employment of Saunders to do this work, in addition to which there is evidence of 14 months subsequent satisfactory service, which we have said to be the best evidence of competency. See Walkowski v. Consolidated Mines, 115 Mich. 629 (41 L. R. A. 33).

It is conclusively proved that Saunders was an engineer every way competent to run the hoisting apparatus and the engines, and that the only thing lacking was infallibility. We held in the case last cited that:

“ The fact that an employé, after operating machinery correctly for several months, forgot on one occasion, and turned a brake the wrong way, thereby causing injury to a fellow-servant, has no tendency to show incompetency.
‘ ‘ Evidence that the fellow-servants of an employé, in the retention of whom the master is alleged to have been negligent, had talked among themselves that he did his work improperly, is not admissible to prove general reputation for incompetency.”

There is no evidence that he was not a trustworthy man *277Why he made the mistake does not appear. It is not shown that he was angry, “nutty,” as Van Sickle called it, nor is there any evidence that he was intoxicated, neither is there anything to indicate that his management of the engines had anything to do with it; so if there had been negligence in those matters, it could hardly be said that such negligence caused the accident. It was said in Walkowski v. Consolidated Mines, supra:

“Evidence that the person in charge of the brake by which was controlled the hoisting and lowering of the passenger cages in a mine was in the habit of lowering the cages at too great speed is not admissible upon the question of his incompetency in an action for injuries caused by his turning the brake the wrong way and letting the cage fall.”

Under the proof in this case, it was the duty of the trial judge to say that defendant had shown due care in the employment of Saunders. If he was negligent, the plaintiff’s action should have been brought against him. He has signally failed to prove negligence on, the part of defendant.

The judgment should be affirmed.

Grant, C. J., concurred with Hooker, J.