text:
    Towanda Coal Company versus Heeman.
    ]. Where a servant in the employment of his master does an act which he is not employed to do, the master is not responsible.
    2. Where there was no evidence that the servant was acting in the line of his duty and within the scope of his employment, it was error to submit to the jury the question whether his wrongful act was or was not done in the exercise of a duly delegated authority.
    March 18th 1878.
    Before Askew, C. J., Siiarswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Plea: of Bradford county: Of January Term 1878, No. 42.
    Trespass on the case by Henry Heeman, by his next friend, Hiram Heeman, against the Towanda Coal Company, to recover damages for an injury to plaintiff, which it was alleged was caused by the negligence of defendants. Plea: “Not guilty.”
    The defendants are the lessees of a railroad which runs into the town of Towanda. While one of their coal trains was stopping at said station, three small boys, among whom was the plaintiff, climbed up on the cars. After the train had started the boys were discovered by one of the brakemen, who proceeded to drive them off by throwing coal at them, some pieces of which struck the plaintiff in the face and partially blinded him, and in consequence of which, as he himself testified, he slipped and fell in trying to get off the train. He fell on the track, and the cars passed over him and crushed his leg so badly that it had to be amputated upon the day of the injury. The brakeman denied that any coal was thrown at the boys. It appeared that the injury to the lad was observed by one of the brakemen, but the train was not stopped. The train was in charge of a conductor, and had in addition three brakemen. The other material facts will be found in the opinion of this court. Among the points submitted by defendants were the following :—
    2. That it was not within the scope of any brakeman’s authority in employment, to throw coal at any person upon the train.
    3. That it was not within the scope of the. employment or authority of any employee of the defendant, whose conduct is claimed to be the cause of the injury complained of, to admit or exclude persons from the train.
    The court, Ingham, P. J., refused both of these points, and in the general charge said : “ If the jury believe from the evidence that an employee of the company caused the boy to jump off while the train was in motion, and thereby caused the injury, it remains for you to decide from the evidence whether the said employee was acting within the scope of his employment; if he was not, it was his personal act, and the company is not responsible for it; if he was, the company is liable, and the plaintiff is entitled to recover. [If it was part of his employment to keep boys or others from riding on .the train, ,he would be acting within the scope of his employment in driving the boy off, and if he did it in a violent, careless or negligent manner, the company is liable for his act.]”
    The verdict was for the plaintiff for $1000. The defendants assigned for error the refusal of their points, and the portion of the charge in brackets.

      Plhanan Smith, for plaintiffs in error.
    — The act of the brakeman in throwing the coal could create no liability on the part of the company, and yet the court permitted the jury to find the fact that this act was within the scope of his employment when there was no evidence on which to base such a finding. He had no control over the management of the train, and had no right to admit or exclude passengers,- and the court should have so instructed the jury. The lad was unlawfully on the train, and the company is not liable: P. & R. Railroad Co. v. Hummell, 8 Wright 378; Railroad Co. v. Norton, 12 Harris 465; Flower v. Penna. Railroad Co., 19 P. F. Smith 210. The master is not responsible for the wilful tort of his servant: 2 Hilliard on Torts 323, 422; Snodgrass v. Bradley, 2 Grant 43; Phila., Germantown and Norristown Railroad Co. v. Wilt, 4 Whart. 147; Isaacs v. Third Ave. Railroad Co., 47 N. Y. R. 122.
    W. W. Patrick, for defendant in error.
    — The question is not whether the brakeman had authority to do the- particular act, but was he in his ordinary employment at the time the act was done, and after evidence of a particular employment what is within its scope is a question of fact to be left to the jury: Lackawanna Railroad Co. v. Chenewith, 2 P. F. Smith 382; Passenger Railroad Co. v. Donahue, 20 Id. 121; Higgins v. Waltervliet Turnpike Co., 46 N. Y. 323; Sanford v. Railroad Co., 23 Id. 343; Jackson v. Second Avenue. Railroad Co., 47 Id. 274.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

Although the point was not directly made to the court that there was no evidence tending to prove that it was within the line of a brakeman’s duty to remove trespassers or other persons from the cars of the defendants, yet under the particular circumstances disclosed by. this record, the question was sufficiently raised by the second and third points, which should have been affirmed. In substance they were prayers for instructions to the jury that it was no part of a brakeman’s duty to throw coal at any person on the train to which he was attached, or to- admit persons to, or remove them from the train. A careful examination of all the testimony has shoAvn that not a word contained in it tended to prove that the brakeman whose conduct is complained of, in the cruel and wanton assault he made on the plaintiff, was acting in pursuance of any authority conferred on him. The only affirmative proof was precisely in the opposite direction. J. B. Judd, the assistant superintendent of the defendants, said : “ The duty of the conductor is to take charge of the running of the trains, and he may admit or exclude passengers therefrom; the brakemen have nothing to do with passengers ; they do the general business of the train as far as labor is concerned — putting on brakes, and the general work of handling a train of cars.” The plaintiff at the time of the accident was a boy seven or eight years old. While a train on the Barclay railroad was stopping at the station in Towanda, he, with one or two other boys, climbed upon the cars. After the train started, •one of the brakemen drove him off by throwing pieces of coal at him, some of which struck him in the face, partially blinding him. In attempting to get off he slipped, because, as he said in his testimony, he “ could not see but a little,” and falling on the rail, the moving cars passed over him and so crushed one of his legs as to make amputation necessary the same day. In their charge, the court submitted the question of the brakeman’s authority to the jury, and a verdict for the plaintiff was rendered.

It was said by Maule, J., in 13 C. B. 247, that a master is liable for the act of his servant, “ even though the servant, in the performance of his duty, is guilty of a deviation, or a failure to perform it in the strictest and - most convenient manner. But where the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible, for the negligence of the'servant in doing it.” Thus, in the leading case of McKenzie v. McLeod, 10 Bing. 385, the master was held not to be liable for the negligence of a servant who burned a house down in trying to cleanse a chimney, it being shown that the servant’s duty was not to cleanse the chimney, but to light the fire. The legal rule was stated in the opinion of Alderson, J., in that case to be, that the act of the servant is the act of the master where the duty is defined by precise orders ; and where something is directed to be done, and the manner of doing it is left wholly to the discretion of the servant, the judgment exercised may be considered the judgment of the master, and he must be answerable. “ But,” the judge added, “where he has neither ordered the thing to be done, nor allowed the servant any discretion as to the mode of doing it, I cannot see how in common justice or common sense, the master can be held responsible.” Where a coachman, after having used his master’s horse and carriage in going upon an errand for his master, instead of taking them to the stable, used them in going upon an errand of his own, without his master’s knowledge or consent, and while doing so he negligently ran into and injured the plaintiff’s horse, it was ruled that the master was not liable : Sheridan v. Charlick, 4 Daly 338. The same rule has been applied in Williams v. Jones, 3 Hurlst. & C. 256; in Story v. Ashton, Law Rep. 4 Q. B. 476; and in the Pennsylvania eases of The Philadelphia, Germantown & Norristown Railroad Co. v. Wilt, 4 Whart. 143; Snodgrass v. Bradley, 2 Grant 43, and Flower v. The Pennsylvania Railroad Co., 19 P. F. Smith 210.

Upon the facts developed on the trial, although the plaintiff had no right to be on the cars, the jury would have been justified in finding, as they did, such reckless, gross and culpable negligence as to render the defendants liable for damages, if the brakeman had been shown to have been acting in the line of his duty and within the scope of his employment. With no evidence that he was só acting, and with the testimony of the assistant superintendent to the contrary, it was a mistake to submit the question whether the wrongful act was or was not done in the exercise of a duly delegated authority.

Judgment reversed and venire facias denovo awarded.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Paxson

license: Public Domain

text:
    Central Railroad of New Jersey versus Green and Wife.
    1. G. and his wife, who were colored people, brought an action against a railroad company for the exclusion of the wife from a railway car. The evidence of her exclusion was denied by the witnesses for the company, and it-was attempted to be shown that G., who was in company with his wife, was smoking, and that the exclusion was for that reason. The smoking was denied by G. and other witnesses. The court charged that it was conceded on all sides that the wife was excluded; and further instructed the jury that there was no doubt she was excluded if the testimony be true. Held, that this instruction did not take the facts from the consideration of the jury, and left to them to determine whether the exclusion was on account of race or color.
    2. Paxson, J., concurring, was of opinion that there was not sufficient evidence of the exclusion on account of race or color, but as there had been no assignment of error to raise the question, the judgment should stand affirmed. And further, that while the Act of 1867 was intended to prevent railroad companies from making distinctions between passengers on account of race and color, it did not intend that said companies should be debarred from making reasonable police arrangements in the management of their road, and if they choose to designate a particular car for certain passengers, they are not to be compelled to assign a reason therefor.
    March 15th 1878.
    Before Agnew, C. J., Sharswood, Mbrour, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of. Common Pleas of Luzerne county: Of July Term 1875, No. 78.
    Debt by John-W. Green and wife, in right of said wife, to recover a penalty of $500 for the alleged exclusion of Mrs. Green from the cars of defendants. The suit was brought under the provision of the Act of March 22d 1867, Pamph. L. 38, as follows:

      “ Any railroad or railway corporation, within this Commonwealth that shall exclude, or allow to be excluded, by their agents, conductors or employees, from any of their passenger cars any person or persons, on account of color or race, or that shall refuse to carry in any of their cars thus set apart, any person or persons on account of color or race, or that shall for such reason compel or attempt to compel any person or persons to occupy any particular part of any of their cars set apart for the accommodation of people as passengers, shall be liable in an action of debt to the person thereby injured or aggrieved in the sum of five hundred dollars; the same to be recovered in an action of debt as like amounts are now by law recoverable.”
    The defendants pleaded nil debet, payment Avith leave, &©.
    At the trial before Harding, P. J., it appeared that Green and his Avife, who were colored people, after purchasing tickets at Wilkesbarre, boarded the train at this .station with the purpose of going to their home at Parsons, a few miles distant. The train had a smoking and two other passenger cars, and Green and his wife attempted to enter the rear car by way of its front platform. Other passengers were entering this car at the same time. Tavo white ladies immediately in front entered the car Avhen Mrs. Green approached and Avas stopped by the brakeman, Avho pushed her back and pointed to the front car. She then stepped on the platform of the car in front and endeayored thereby to step on to that of the rear car, but the brakeman put up the chain and prevented her. Green then tried to take the chain down, when the brakeman locked the door. While this controversy was going on, two white ladies, one of whom was a passenger for Parsons, was permitted to enter the rear car. Not succeeding in her effort to get into the rear car, the train having meantime started, Mrs. Green entered the one in front and remained there until she reached Parsons. The car in the rear was designated the NeAV York car and that in front the Philadelphia car, they having come from those cities respectively. They were both, however, destined for a point beyond Parsons. The brakeman did not assign Mrs. Green’s color as a reason for her exclusion from the car. It was alleged, however, that Green was smoking, and that for that reason alone he AA'as directed to the smoking-car. Three employees of the road swore positively that this was the only subject of controversy, and that Mrs. Green herself Avas not refused an entrance. Witnesses on the part of Green, on the contrary, denied that he was smoking.
    In their charge to the jury the court said: “ That Mrs. Green was excluded, there can be no doubt, if the testimony of plaintiff’s witnesses be true; [and that she was excluded from the car is conceded, even by the testimony that has been produced here on the part of the defence.] Hid they exclude her because of her color ? Mrs. Green Avas not smoking; the only bearing the matter of smoking has in the case, is with reference to the credibility of John W. Green. He says he was not smoking. Some witnesses say he was ; others say that he had a cigar in his hand. Others again say they did not see him smoking. No person seems to have seen him smoking while he was in the passenger room, and the testimony seems to be that he went right out of the room towards the train. This is a circumstance proper for your consideration in determining as to the credibility of the man. Now, if Green was smoking, or was inebriated, either might have furnished a reason why the company should exclude him; but it would not entitle them to exclude the wife, if she was quiet and orderly, and not smoking. We say to you that if she was seeking admission to that car, and was excluded on account of her color, the company are liable. There is no positive testimony, in so many words, that the brakeman said she could not enter the rear car because she was a colored woman. But very often we have to judge of human action according to the circumstances under which it takes place. Did persons go into that car before her, and were they unmolested? That is a circumstance developed by the testimony. If they did, then it would seem that white people went into the car before her. Did they go in after-wards ? If the testimony is correct — and even the brakeman says, that after these colored people went into the adjoining car, white people went into the rear car — then it would seem that white people went into that car, also, after her failure to enter. Now, that, is a circumstance for your consideration in determining the reason why they excluded Mrs. Green. Was there anything about her except her color? Is there anything in the testimony that goes to show that she was excluded for any other reason ? She was behaving in a very proper manner so far as the testimony shows; [and it is conceded on all sides that she was excluded.] You must consider this case with your minds free from any political or other prejudice. If the law of the state has been violated, the penalty must follow. [If this company excluded this woman from a particular car of their train, as it is conceded on all sides they did, and if such exclusion was because of her color, then she is entitled to recover the sum of $500.]
    “ The defendants’ counsel has asked us to charge you that, in order to entitle the plaintiff to a verdict, the jury must be satisfied, under the evidence, that the plaintiff not only was excluded from the car of the defendant, but that such exclusion was because she was a colored woman. In other words, the jury must be satisfied that she was excluded because of race or color, and for no other reason. We affirm that point, [and have' already charged to that effect.]”
    Yerdict for the plaintiffs. After judgment defendants took this writ, assigning for error, inter alia, the portions of the foregoing charge in brackets.

      This case was first argued on March 16th 1876, and was affirmed by a divided court. See 2 W. N. C. 590. A re-argument was subsequently ordered.

      Stanley Woodward, for plaintiffs in error.
    — The question whether Mrs. Green was excluded was taken away from the jury by the instruction of the court that “ it is conceded on all sides that she was excluded,*’ and this was decisive of the case. The answer of the court to the point submitted is subject to the same objection as the general charge. It assumes the main point in controversy. We asked for a distinct charge upon the two questions: First — as to the fact of exelusion; and second — as to the cause, or reason for it. The answer of the court does not give the jury any light upon the first question, and practically refers them back to the body of the charge for instruction as to the second. In this respect we think it imperfect and erroneous.

      William H. MeOartney, for defendants in error.
    March 25th 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

— It is very clear from the whole evidence on both sides that Mrs. Green, the plaintiff, was excluded from the rear car of the train. Her husband made repeated and ineffectual attempts to put her in. The brakeman pushed her off the step as she attempted to enter, gave no reason, but said, “ Go into that car,” pointing to,the car ahead. She stepped upon the rear platform of the forward car, and attempted to cross to the platform of the rear car. The brakeman put up the chain. Her husband took down the chain, and as he attempted to get his wife across, the brakeman locked the door. During all this time a contrversy was going on. These facts are not controverted or disproved. In all these facts Green and his wife are distinctly corroborated. The judge below recited them and said, “ The fact that the company did exclude her is not enough to entitle the plaintiff to recover. That she was excluded there can be no doubt, if this testimony be true; and that she was excluded from the car is conceded, even by the testimony that has been produced here on the part of the defence. Did they exclude her because of her color ?” This statement is strictly true. Then on what principle can it be said that the judge took the facts from the jury? The defendant did not controvert the exclusion, but put it on the ground that Green had a cigar in his mouth, and was smoking. The testimony is clear that this was the only reason. The fact of smoking was denied stoutly, and Mr. and Mrs. Green’s testimony on this point was thoroughly corroborated. It was the contested fact of the case, and was fully and fairly submitted to the jury, including the credibility of the witnessess, and especially of Green. The case went to the jury on the pivotal question of the case, whether the exclusion of Mrs. Green was on account of her race or color.

Here, too, we find ample evidence to go to the jury. Indeed the point put to the court by the defendants, concedes the sufficiency of the evidence, by requesting the court to charge the jury that the exclusion must have been because she was a colored woman, or because of race or color. No point was made and no error assigned as to the sufficiency of the evidence on this ground.

Green had tickets for himself and wife. They started to go into the rear car, where other passengers were entering. Two white ladies immediately in front of them entered, and as Mrs. Green stepped up, the brakeman pushed her back and pointed to the front car. She was in advance, her husband following. The brakeman did not ask them to show their tickets, and said nothing, except that she should not go into that car; told her to go to the next car. She then got on to the platform of the front car to step on to that of the rear, and the brakeman put up the chain. The husband took it down and tried to get his wife on. The brakeman locked the door. While the controversy was going on two white ladies came and were let into the rear car. One of these passengers lived at Parsons, the same place where the Greens lived, and got off there. Shortly afterwards, Judge Handley and other white persons were permitted to enter the rear car. These facts were fully corroborated by James Thomas, Mrs. Thomas and Miss Thomas, all white. Now, in the absence of all other reason than their color, and in view of the permission to white persons to enter, and the very determined and effectual means used by the brakeman to prevent entrance, what other probable inference could be drawn than that it was because of their color they were prevented. The only ground set up was that Green was smoking. But this was fairly submitted to the jury as a sufficient ground to exclude Green himself, and found against the defendants. The verdict of the jury and perhaps the weight of the evidence is against this excuse, so that it was clearly a question for the jury, what was the cause of exclusion. The evidence is clear that these persons were respectable, decent persons, and it is scarcely possible to conceive of any ground of exclusion on the evidence except their color, the smoking being negatived.

' We perceive no error in the record, and therefore the judgment is affirmed.

Sharswood, J., dissented.

Mr. Justice Paxson

filed the following concurring opinion:—

While I concur in the judgment in this case I do not agree to that portion of the opinion in which it is asserted that there was ample evidence to go' to the jury of the exclusion of Mrs. Green from the car on account of color. The sufficiency of the evidence upon this point was really not before us, as no such question was made in the court below. Its discussion here might well have been omitted,

The Act of 22d March 1867, Pamph. L. 88, should receive a a reasonable construction. It was manifestly intended to prevent railroad companies making distinctions between passengers on account of race or color. In other words, to secure to colored persons the same rights in travelling as are enjoyed by others. All fair-minded people must concede that this is entirely proper. But I do not think it was intended by said act to give them superior privileges, or to so interfere with the reasonable police arrangement of railroad companies in operating their road and moving their cars as to enable a colored man to force himself into a car where, by reason of such police regulations, a white man may not enter. An ordinary traveller takes his seat in such car as may be pointed out to him by those in charge of the train. In doing so he recognises the undoubted right -of the company to designate the car which he shall enter. He has a right to a seat, but not to a seat in any particular car. There are sufficient reasons why this should be so. Trains are often made up of way cars and through cars. Sometimes there are one or more cars attached occupied by private parties, excursions, &ci Of necessity those in charge of the train must have the right to assign a particular car to the passenger when he gets on the train. Nor do I think they are obliged to give any reason for- the selection, otherwise needless discussions might arise in seating the passengers to the delay of the train and the annoyance of all reasonably disposed travellers. I am unable to see that the mere fact of Mrs. Green’s exclusion from a particular car was evidence that such exclusion was on account of race or color. She was directed to enter a car in which white persons were seated, and which was the -equal in every respect of the car from which she was excluded. One was a New York car and the other was a Philadelphia car. There was no other point of difference. Had she been forced to enter a smoking car, or a car set apart for colored persons, there, would have been a clear violation of the Act of 1867, and this verdict would have.been entirely proper. As no such indignity was offered her, I am of opinion that the case is wholly devoid of evidence to show her exclusion on account of race or color. As, however, this point was not raised, the judgment must be affirmed. I refer to it merely to avoid the appearance of concurring in views which I regard as not only unsound, but as unnecessary to the decision of the case.


author: Mr. Justice Paxson

text:
    Central Railroad Company of New Jersey versus Green.
    1. The penalty prescribed by the Act of March 22d 1867, relating to the exclusion of colored persons from the cars of railroad companies, is given by way of punishment to the offender rather than by way of compensation to the party aggrieved, and where, therefore, several persons are aggrieved by the commission of a single offence, a recovery by one is a bar to recovery by the rest.
    2. G. and his wife, who were colored persons, were excluded from the car of a railroad company at the same time and by the same employee. Held, that the exclusion of the two was but a single offence, and a recovery having been had by G. and his wife in the right of the wife, G. could not recover thereafter in his own right.
    3. Hill v. Williams, 14 S. & R. 287, followed.
    March 15th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1876, No. 35.
    Debt by John W. Green to recover the $500 penalty under the provisions of the Act of March 22d 1867, as set forth in the preceding case. This action was brought by Green alone, the evidence of exclusion being in substance what was produced in the foregoing case, wherein he was a co-plaintiff with his wife.
    The only question in the case was that raised by the following points of defendant and the-answers of the court, Harding, P. J., thereto:—
    1. That under the Act of Assembly of 22d March 1867, but one recovery can be had of $500, penal sum, for a single act of excluding one or more persons from the car of a corporation, and where such exclusion is jointly of several persons, the person aggrieved within the meaning of the statute, is that one among the persons jointly excluded, who shall first sue for the $500 imposed by the statute.
    2. As it appears from the evidence in this case, a recovery has already been had in this court by present plaintiff and his wife, in right of said wife, against the company, defendants, for the $500 jDenalty, no further or other recovery of another penalty by the husband alone, can be had.
    The answer of the court was as follows
    “I must negative these points. Considering, in the first place, the exclusion of this plaintiff and his wife from the car in question as a tort, manifestly a recovery could be had for any particular injury sustained by either. To illustrate: Had a gun loaded with shot been fired at them by a bystander, some of the pellets taking effect in one and some in the other — in that case two actions could certainly be maintained. Again, considering their exclusion as an act for which the law prescribes a penalty, the rule as to recovering the penalty would be the same as that applicable to other statutes imposing penalties. For instance, a child may give' notice to the vender of intoxicating liquors not to sell to the father and mother, both of whom are habituated to drinking to excess; but the vender, nevertheless, makes the sale, and the father and mother drink and die as a consequence. Can but one penalty be recovered ? Shall the child, after recovering for the injury sustained by the loss of the father, be denied his action for the greater injury, perhaps, occasioned by the loss of his mother ?”
    The verdict was for plaintiff, and the defendants assigned for error the foregoing answers of the court to their points.

      Stanley Woodward, for plaintiff in error.
    — Our contention is that a single offence under the first section of this act, is committed by the exclusion, refusal to carry, or compulsory placing of one or more persons, at one time, on account of color or race, and that of necessary consequence, but one penalty can be recovered therefor. The words which define the offence can have no other construction than this, if strictly construed; for they declare very plainly that the new offence may be an act committed against one person, or committed against more persons than one, taken collectively — a singular and a plural word being both used, and used disjunctively. The offence is to consist of an act which maybe directed against several persons at once as well as one person, and nothing in the language indicates a generic definition inclusive of as many specific offences as there are persons aggrieved. The word “persons” in this case is plainly a collective term, pure and simple; if it were not so the word “person” which precedes it would disappear from the statute, or remain there useless and impertinent.
    The whole statute is to be considered: Holl v. Deshler, 71 Penn. St. 301. Being strongly penal throughout, it is not to be strained beyond its letter, and “nothing is tobe taken against the party charged by intendment:” Bartolett v. Achey, 2 Wright 273; Jones v. Estis, 2 Johns. 380.
    The following decisions were upon penal statutes, and similar to the act of 1867 in the words used to define an offence, and fix the right of an aggrieved party to recover a penalty for its commission: Hill v. Williams, 14 S. & R. 287; Commonwealth v. Borden, 11 P. F. Smith 272; Hardyman v. Whittaker, 2 East 573 n.; The King v. Bleasdale, 4 Term Rep. 809; Pike v. Madbury, 12 N. H. 262; Beadleston v. Sprague, 6 Johns. 101.
    The argument for a single penalty, is presented with peculiar force by the present case, where a colored man sets up a refusal by-a brakeman, to admit him, with his wife, to a particular car. There is no proof that the wife acted independently of her husband, or asserted any separate right of her own. If he and his wife had had several children with them, could he recover penalties for each ? Suppose a conductor upon a train, should remove a family of colored persons from one part of a car to another, would the corporation thereby incur a penalty to each member of the family, including infants of tender years ?

      Wm. S. McOartney, for defendant in error.
    — The law prohibits the exclusion of colored persons by reason of their color, and gives the right of action to the person aggrieved. How aggrieved? “Thereby ” aggrieved. That is to say, by the prohibited exclusion. One hundred are excluded, and one hundred are “thereby” aggrieved. Yet, ninety-nine have no right of action. The fallacy of the argument that reaches such a conclusion, begins with the first point of the plaintiff in error, wherein, it is assumed, that the exclusion of two persons was a “single act,” and that this corporation is not liable to the two persons aggrieved by that “single act.”
    But, if one by a single cast throws poison into the wells of two of his neighbors, he must answer to both well owners therefor. Not for a specific sum, to be sure; but for proven damages. And the poisoner cannot answer to the suit of one well owner, that he has become liable to pay damages to the other. The doctrine of strict construction is undoubtedly applicable to actions of this character. But, quoting that part of Judge Thompson’s decision in Bartolett v. Achey, 2 Wright 277, which the plaintiff in error omits, “strict construction is not the same thing as construing everything to defeat the action.” Again, the first point of the plaintiff in error assumes that the exclusion of John W. and Martha Glreen was a joint act; and that John, or Martha, is the person aggrieved, just as the one, or the other, happens to sue first for the penalty. In other words, the liability of this corporation for a violation of the law depends not on its own acts, but on the course pursued by the persons affected by its criminality. The words “person or persons,” used in this act, apply to the party aggrieved, not to the offender. As to this corporation, the exclusion, was physically, perhaps, only a “single act.” But as to John W. Green and Martha Green it was dual in its consequences, operations and effects; was a violation of the rights of both, and gave rise to liabilities to both.
    March 25th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The plaintiff below brought an action of debt to recover the penalty of $500 under the first section of the Act of 22d March 1867, Pamph. L. 38, for excluding him from a particular car of the defendant corporation. It was alleged by the plaintiff, that himself and wife were prevented from entering one of the passenger cars of the defendant, at Wilkesbarre, on the 26th of December 1873, by one of the employees of .the company, and compelled to take another passenger car of the same train in order to proceed to their home, a distance of two miles. The’re was neither allegation nor proof that the car they were compelled to enter was inferior in any respect to the one from which they were excluded, nor that it was a car set apart for colored people. It was contended, however, that they were not allowed to enter the particular car by reason of their color, and the jury have established this fact by their verdict. The case comes up to us upon the single question whether a former verdict and judgment in a suit brought by the plaintiff and his wife, in right of the wife, for the same act of exclusion, is a bar to this suit. The court below held that the former recovery was not a bar, upon the principle that the act of the company’s employee in refusing to allow .the plaintiff and his wife to enter a particular car was in the nature of a tort, and that either or both could recover for an injury resulting therefrom.

If this were an action to recover damages resulting from personal injuries, occasioned by the act of the company’s servant, the reasoning of the learned judge would not be inaccurate. In such case a verdict in favor of the wife for injuries sustained by her, would be no answer to a suit by the husband for injuries sustained by him. It was not an action for damages at all. It is not even contended that any damages were sustained. The action is for the penalty imposed by the legislature upon railroad companies, who should compel colored persons to ride in a particular car. The object of the act was to punish such corporations for making such distinction. The exclusion of the plaintiff and his wife, was a single act, done at the same time and by the same person. To punish the company twice for the same act, would be unreasonable, and against the spirit and meaning of the Act of Assembly. This is plain from an examination of the second section, which provides : “That any agent, conductor or employee, of any railroad or railway corporation within this Commonwealth, who shall exclude, allow to be excluded, or assist in the exclusion from any of their cars set apart for the accommodation of passengers, any person or persons, on account of color or race, or who shall refuse to carry such person or persons on account of color or race, or who shall throw any car or cars from the track,* thereby preventing persons from riding, shall be deemed guilty of a misdemeanor,” &c. Thus we have two sections relating to this subject, the first imposing a penalty of $500 upon any company which shall exclude any person or persons by reason of color or race from any particular car, or which shall allow it to be done by any agent, conductor or employee, and the second punishing by fine and imprisonment, any agent, conductor or employee who shall be guilty of such act. It certainly could not be seriously contended that the employee by whom the plaintiff and his wife were excluded, could be twice prosecuted and convicted under the second section. It was a single act, and when once punished according to law, he could not be punished again. So under the first section, the company, after having once paid the penalty for their unlawful act, cannot be called upon to pay it again. And this because the penalty is given by way of punishment to the offender, rather than by way of compensation to the party aggrieved. For any injury he may have sustained he would have his right of action independent of the penalty, and I do not see that he would be bound thereby. The fact that several persons may be aggrieved by the commission of a single offence, affords no ground to justify an inference that each may have his suit for the penalty imposed upon its commission, where the plain object of the law is to punish or repress a public wrong rather than to compensate a private injury. The penalty imposed by the act is so disproportioned to any supposable injury in any ordinary case that we are bound to presume it was intended as a police regulation for the management of railroads, and to have been induced from motives of public policy. Indeed this clearly appears from the title of said act, which describes it as “ an act making it an offence for railroad corporations within this Commonwealth, to make any distinction with their passengers on account of race or color, and punishing said corporations, and their agents and employees, for the commission of such offence.” We cannot give a loose construction to an act so severely penal as this. Had the legislature intended to give an action to each person aggrieved by a single act of an employee of the company, it rvould probably have used appropriate language to express such intent, and said any, or each, or every person aggrieved, shall have his, her or their action, &c.. On the contrary, tve have an offence defined, which by the terms of the act, may he committed against one or several persons, and an action of debt for the penalty given, to “the person thereby injured or aggrieved.” Again, the statute gives but $500 for the exclusion of any person or persons from the car. How then .can it be possible for a single act to recover a double penalty ? I do not think it necessary in so plain a case to encumber this opinion with any extended citation of authority, especially in view of the fact that it must be decided to a great extent upon the proper meaning and construction of the Act of Assembly. Yet the case of Hill v. Williams, 14 S. & R. 287, is so like this in principle that a brief reference to it may not be unprofitable. There the action was against a justice of the peace to recover the penalty of fifty pounds under the Act of 14th of February 1729-30 (1 Sm. Laws 180), to prevent clandestine marriages. Both of the parties joined in marriage by the justice were minors. The father of' the female infant brought his action under the statute and recovered. Subsequently the father of the male infant brought a similar suit against the justice, and it was held that but one penalty could be recovered, and that the first judgment was a bar to the second suit. It was said by Tilghman, C J., in delivering the opinion of the court: “ The object of the law was not so much to make a compensation to the injured parents (for in many cases fifty pounds would be no compensation), as to deter all persons from being accessory to these clandestine marriages. For this purpose a certain penalty was thought to be the best remedy, and a penalty in money being inflicted, no person was so proper to receive it as the party grieved, if he thought it advisable to sue for it. But, if he declined suing for the penalty, I see nothing to hinder him from suing for damages under the original act. Penal laws should be held to a strict construction, and it would certainly require very clear expressions to double the penalty: The argument in favor of a double penalty is founded in the expressions in the second section, “he shall forfeit the sum of fifty pounds, to be recovered by the person or persons grieved.” But what is to be recovered ? The sum of fifty pounds and no more, for no other sum is mentioned. The word “persons” is often applicable to one party. For instance, a minor may have several guardians or several masters who are in partnership. In such cases all the guardians or both the masters may bring suit as one party. But if the word “persons” is applied to a case like the present, where the parents of both man and woman are grieved by the marriage, it is much more reasonable to say that both may join in the action and share the penalty, than that the justice shall pay one hundred pounds, when the law has said that he shall pay fifty pounds.” The inclination of the courts against multiplying penalties is strong: Commonwealth v. Borden, 11 P. F. Smith 272; Hardymann v. Whitaker, 2 East 573; The King v. Bleasdale, 4 Term Rep. 809; Pike v. Madbury, 12 N. H. 262; Beadleston v. Sprague, 6 Johns. 101. We need not pursue the subject further. We are of opinion that it was error to decline to affirm the first and second points of the defendants. Each of said points should have been affirmed without qualification.

Judgment reversed.

G-ordon, J., dissented.


author: Mr. Justice Mercur

text:
    Lehigh Valley Coal Company versus Jones.
    1. In order that workmen should' be fellow-servants within the meaning of the rule that a master is not responsible to a servant for an injury caused by his fellow-servant, it is not necessary that the workman causing and the workman sustaining-the injury should both be engaged in the same particular work. It is sufficient if they are in the employment of the same master, eugaged in the same common work, and performing duties and services for the same general purposes. And the rule is the same, although the one injured may be an inferior in grade and subject to the control and direction of the superior whose act caused, the injury, providing they were both co-operating to effect the same common object.

      2. A “mining boss” and a “driver boss,” are such fellow-servants, and where the death of the latter is caused by the negligence of the former, the owner of the mine is not responsible.
    3. To prove contributory negligence, it is competent to show that the deceased was warned to avoid the place where he was killed, and that he himself had conveyed this warning to others.
    4. Mullan v. Steamship Co., 25 P. T. Smith 25, explained.
    March 15th 1878.
    Before Agnew, C. J., Sharswoc\d, Merour, Gordon, Paxson, Woodward and Trunkby, JJ.
    • Error to the Court of Common Pleas of Luzerne county: Of January Term 1878, No. 242.
    Case by Gilbert Jones against the Luzerne Coal and Iron Company, to recover damages for the death of his son, which, it was alleged, was caused by the negligence of .defendants. Plea, “Not guilty.”
    It appeared that on the 12th of February 1876, an explosion took place in a mine of the defendants, known as the Exeter Shaft, Avherein four men were killed, among whom was the plaintiff’s son. The mine had all the machinery and appliances necessary for ventilation required by the Mine Ventilation Act of 1870. The engines and fan were capable of throwing into, or rather drawing through the mine, one hundred and twenty thousand cubic feet of air per minute. The method of ventilation, in general use in the Wyoming coal fields, and, indeed, throughout the entire anthracite region, is by sucking or drawing the air from some distant inlet into the mine, called a “ down-cast,” through the mine, and thence up and out by what is called the “up-cast,” which is near the shaft. This system requires that the currents of air shall be carried against the parts of the mine being worked, the “ workings” specified in the Ventilation Act. This results in separating the worked out part of the mine from the part being operated; the direct currents being thrown against the breasts being worked, and the old or worked chambers and gangways being ventilated by the general suction of air through the whole mine. In order to conduct these currents of air, and to shut off certain of those parts of the mine which have been worked, doors are erected at intervals, and the several openings (from one gangway or chamber to another), closed, so far as the current thus artificially created is concerned. The Mining Ventilation Act expressly requires that these doors shall be double, that is, two doors at a sufficient distance. There being a suspension of work throughout the coal region, all general work in the mine had been stopped, and the men, numbering nearly three hundred, discharged, until operations could be resumed. Only thirty men were retained, and they were set to work to build an air bridge, widen a gangway, and make such repairs as could not be effected whilst the mines were in full operation. All of these men were working near the foot of the shaft, and near the current of air. Complaints were made by the men to the mine boss, Reese, that it was difficult, and, in fact, almost impossible, to work, by-reason of the immense volume of air passing them. The fan was then slowed down from about sixty to forty-two revolutions per minute. The witness examined on this point, an expert, familiar with this mine, testified that thirty-five to forty revolutions per minute were sufficient to ventilate the whole mine with all the men working. As a measure of precaution, however, Reese, the mine boss, warned the men not to go through any doors, or off the main gangways. This warning was repeated daily, and was communicated to Alex. Jones, who was then employed as a driver boss, and who repeated it, as he had been ordered to do, to several workmen,' whom he happened to see on the morning of the accident.
    After the explosion the body of Jones was found in a side chamber, inside of a door' shutting off that gangway from the one in which the men were at work, and a few hundred feet from them. The fact that his body rvas burned and that none of the other men employed were burned, would seem to indicate that his lamp had occasioned the explosion. The body was found by the side of some empty cars, which were also burned. Jones was “driver boss,” whose duty it was to keep the miners supplied with empty cars.
    The superintendent of the colliery testified that he had the general control of the management thereof; that Col. Mason was the “outside foreman,” and Mr. Reese the “inside foreman” of the Exeter Shaft; that the duties of Col. Mason were to take charge of the coal when it came from the mines and to have the supervision of the breakers, engineers and outside men. Mr.'Reese was also called the “mining boss.” He had entire control of the inside operations in regard to the workingmen employed and the ventilation, subject to orders from the general superintendent. Harris was an assistant under him. Davis was the “fire boss,” whose duty it was to go down into the mine every morning before the men began their work, to ascertain the condition of the miné and the quantity of gas therein. Jones, as- before stated, was the “driver boss.”
    At the trial before Stanton, J., the defendant offered to prove by a witness on the stand, that on the Wednesday preceding the Saturday of the accident (witness then working in the shaft), the deceased told the witness not to go off from the mine gangways or through any door. The court sustained the objection to this offer and sealed an exception.
    This was the twelfth assignment of error.
    The following points were submitted by plaintiff, to which are subjoined the answers of the court:
    1st. If the jury believe that A. Reese had entire charge of the mining and ventilation of this shaft, and that A. G. Mason had entire charge of the machinery and engines, and that by the orders of both Reese and Mason the revolution of the fan was slowed to an unsafe degree, and that the deceased lost his life in consequence while in the ordinary discharge of his duty, then the verdict should be for the plaintiff.
    Ans. “ This point we affirm.”
    2d. If the jury believe that the accident in question occurred to the deceased while in the ordinary discharge of his- duty, through the negligence and want of due care on the part of the defendant, who had control of the mining and ventilation of the shaft and colliery, then the verdict should be for the plaintiff.
    Ans. “ To this we say your verdict should be for the plaintiff if you find that there was not contributory negligence on the part of Alexander Jones.”
    The defendants asked the court to charge “that under all the evidence in the case the plaintiffs cannot recover,” which was refused. This was the eleventh assignment.
    In the general charge the court, inter alia, said:—
    “When a company or an individual gives over to an agent all or any part of his business to perform, and leaves the exclusive control of it and all the discretion pertaining thereto in the hands of said agent, anything that results from the negligent performance of such duties, the company is to be held answerable for. Taking in this case Colonel Mason, Mr. Reese, Mr. Davis and the gentleman who w'as killed, Thomas Harris, they were the company’s agents in this case, and for any act of negligence on their part in the line of duty assigned to them, the company is to be held -responsible by you.”
    This portion of the charge was the fourth assignment.
    The court further said:—
    “According to the testimony on the part of the plaintiff, Jones was a careful, industrious and diligent young man. [According to that testimony he was very much afraid of explosions of gas.] About two o’clock of the afternoon of that day, according to this evidence, an explosion of gas occurred in the mine and he was killed thereby. [Now if you find that he was simply performing his duty there, that he was then in the line of his duty, and that this explosion on account of the negligence of the defendant, then Gilbert Jones is entitled to damages for the life, or rather for whatever he has lost, by the death of his son.]
    The foregoing portions of the charge in brackets, constituted respectively, the fifth and sixth assignments. The verdict was for plaintiff for $3600. The defendants took this writ, the assignments of error, inter alia, being those above noted.

      J. YaugTtan Darling, Samuel Dickson and Henry M. Hoyt, for plaintiffs in error.
    — If the proposition embraced by the fourth assignment is law, it becomes practically impossible for any corporation or individual, to conduct any business of a character which requires the employment of other persons in any capacity other than that of common workmen.
    The court below instructed the jury, as matter of law, that the outside superintendent, the inside superintendent, the mine boss, and the fire boss were all principals, and that any act of negligence on their part, by which one of the company’s employees was injured, bound the company.
    The charge is not sustained by Mullan v. Steamship Company, 28 P. F. Smith 251, on which it assumes to rest. All that case decides is that, under all the evidence, it was a question of fact for the jury to say whether the defendants had not conferred on the superintendent “ such unlimited authority as to make him their representative, and to make themselves responsible for his default.”
    Mason, Reese and Jones, were all fellow-servants, and the fact that there was a distinction in the grade of the services makes no difference. It is not necessary that there should be privity of service to apply the rule that the master is not responsible for an injury by a fellow-servant: Gallagher v. Piper, 16 C. B. N. S. 669; Feltham v. England, L. R. 2 Q. B. 33; Searle v. Lindsay, 11 C. B. N. S. 429; Hall v. Johnson, 3 H. & C. 589; Innocent v. Peto, 4 F. & F. 8; Albro v. Canal Company, 6 Cushing 75; Ryan v. Railroad Co., 11 Harris 384; Frazier v. Railroad Co., 2 Wright 104; O’Donnell v. Railroad Co., 14 Wright 490; Caldwell v. Brown, 3 P. F. Smith 453; Meyer v. Railroad Co., 5 Id. 460; Ardesco Railroad Co., 13 Id. 146; Patterson v. Railroad Co., 26 Id. 389. The true rule as to the duties and liabilities of the master towards the servant was arrived at in the English case of Wilson v. Merry, L. R., 1 H. L. Scotch App. Cas. 326; see also Morgan v. The Vale of Neath Railroad Co., L. R., Q. B. 149; Howells et al. v. Landore Simons Steel Co., L. R., 10 Q. B. 62. See also the following cases as to what constitutes fellow-servants: Farnwell v. Railroad Co., 4 Metc. 49; Bartonshill Coal Co. v. Reid, 3 Macq. S. C. App. 295.

      Gharles F. Rice and Alexander Farnham, for defendant in error.
    — Many of the authorities cited by the plaintiff in error, as bearing on the fourth assignment of error, are irrelevant, as we do not dispute the doctrine of non-liability for the acts or negligence of a fellow-servant. We deem the remarks of the court in reference to Colonel Mason, Thomas Harris and Edwmrd Davis as unessential, and as not having tended to influence the jury in their deliberations upon the verdict. It was nowhere claimed that Davis or Harris were the parties causing the injury. Even with this statement from the court, if the jury found, agreeably to our points, that A. Reese had entire charge of the mining and ventilation, and that the accident resulted from the negligence of the agent or agents of tbe defendants, tbe verdict must be sustained, for there can be no doubt as to Reese’s functions, nor that his deliberate act caused the injury.
    The point upon which the case of Wilson v. Merry, supra, turns arises from the view there taken of the nature of the master’s duty and the workman’s implied bargain. This view, it is needless to say, is essentially different from that which has obtained here and elsewhere in this country, as well as in Scotland, and in several of the English cases. It was there held by Lord Cairnes, that in the event of the master not personally superintending and directing the work, he is bound simply “to select proper and competent persons to do so, and to furnish' them with adequate materials and resources for the work,” and that “when he has done this he has. done all that he is bound to do;” and further, that “if the persons so selected are guilty of negligence this is not the negligence of the master.”

      Sere, the master’s duty is to cause no injury to the workman by his negligence, or by that of his superintendent or middle-man.

      There, his duty is, likewise, when managing for himself, to avoid causing injury, by his negligence, to the workman; but if he leaves his business to be managed by others, then his duty is simply to employ a person supposed to be “proper and competent,” to manage for him, at which his responsibility ends.
    The same distinction is to be observed with respect to the risks the servant is assumed to have taken.

      Sere, leaving out of view the mechanical and natural risks, he is assumed as having taken the risk of negligence by his fellow-servants, but not the risks arising from the negligence of the master, or his middle-man when the master is not personally superintending the business.

      There, he is regarded as agreeing not only to the risk of negligence in fellow-servants, but also to the risk of negligence in the middle-man, or deputy-master, although this personage may be invested with unlimited scope of function and duty in the conduct of the business and in the management of its several methods. That these distinctions are radical is evident. Can there be any doubt that a corporation may be liable to its own servants for negligence ? that it can be no more exempt in this respect than an individual ? But how can the negligence of a corporation be shown except by the conduct of those whose will alone must be the will of the corporation, and whose acts are the acts of the corporation, viz.: its managers and middle-men ? Such is the rule in this state: see Frazier v. Penna. Railroad Co., supra; Ardesco Oil Co. v. Gibson, supra; Patterson v. Pittsburgh and Connellsville Railroad Co. 26 Smith 389; Huntington and Broadtop Railroad Co. v. Decker, 1 Norris 119; 3 Id. 419.

      May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This suit was brought by defendant in error to recover damages for the death of his son, Alexander Jones. He was killed by an explosion of gas, in the colliery of the plaintiff in error, known as the “Exeter Shaft,” and while in the employ of the company. It is claimed that the explosion was caused by an insufficient supply of fresh air.

This mine was ventilated by the method usually practised in the coal fields of Wyoming. It is by drawing the air through an inlet called a “down-cast” into the mine, and having passed it through the mine, then up and out by what is called the “up-cast,” which is near the shaft. The movement of the air is effected by means of a “suction-fan.” It creates a vacuum, and that vacuum is filled by the natural pressure of the atmosphere, thereby creating a continuous current. A current of fresh air is thus drawn in, and thrown out, and the gas passes out with it. The fan is a wheel of about twenty feet in diameter, having paddles thereon of about six feet in width. Its effectiveness depends on the rapidity of its revolution. The quantity of fresh air necessary to be passed through the mine depends on the number of men employed therein. The 7th section of the Act of 3d March 1870, Purd. Dig. 1069, pi. 7, declares that in every mine or colliery, an adequate amount of ventilation shall be provided, “ of not less than fifty-five cubic feet per second of pure air, or thirty-three hundred feet per minute, for every fifty men at work in such mine, and as much more as circumstances may require.” The defendant in error proved by James Bryden, that the fan in use at the time of this accident, was of sufficient capacity, when driven, to thoroughly ventilate the mine, and that from thirty-five to forty revolutions a minute would secure perfect ventilation, also that at about forty revolutions a minute, the cubic contents of the ventilation, would be about sixty thousand feet per minute. At the time of the accident there were only twenty-nine or thirty men at work in the mines. Hence the ventilation at forty revolutions per minute, would be thirty times greater than the statute required. No witness testified that the fan was either defective in construction, or insufficient in capacity to properly ventilate the mine. The complaint was that the revolution of the fan was so lessened, that it did not remove the noxious gases, and the explosion therefore resulted. It appears that some days prior to the explosion, all general work in the mine had been stopped. Most of the three hundred persons or thereabouts, who had been at work, were discharged. Some thirty only were retained. They were engaged in making some improvements and repairs in the mine, which could not well be done when it was in full operation. Alexander Jones was one of these men. They were at work near the foot of the shaft, and so near the current of air as to be annoyed thereby. They complained to Mr. Reese, the “ mine boss,” that this large volume of air made it difficult for them to work. At their request the fan was “slowed down.” The natural effect of this would be to check the removal of the carburetted hydrogen, and therefore to permit more of it to remain in the mine.

Jones’s body was found in a side chamber, inside of a door shutting-off that gangway from the one in which the men were at work, and a few hundred feet from them. Whether any duty called him into that gangway does not clearly appear. The marks of burning found on his person would indicate that his lamp caused the explosion ; but the jury has found that he was not guilty of any contributory negligence. The main question now presented for our consideration is whether there was any evidence of negligence for which the plaintiff in error is liable ? It is claimed that the negligence, if any, was that of Jones’s fellow-servants, for which the company is not liable.

It is well settled in England, and in Pennsylvania, and pretty generally in this country, that a servant who is injured by the negligence or misconduct of a fellow-servant, cannot maintain an action against the master for such injury. If, however, there be fault in the selection of the other servant, or in retaining him in his place, after he has proved incompetent, or in employing unsafe machinery, the master may be liable. So, if the master has placed the entire charge of the business in the hands of an agent, exercising no authority and no superintendence of his own therein, he may be liable for the negligence of such an agent, to a subordinate employee. This rule of liability for the negligence of a general agent applies whether the master be an individual or a corporation. Owing to the fact that the business of corporations is transacted by means of agents, they would escape the just measure of liability unless this rule applied to them. In this respect, both as to liability and for protection, they stand on the same footing w'ith individuals.

The question arises who are fellow-servants in contemplation of law ? To constitute such they need not at the time be engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purposes. The rule is the same, although the one injured may be inferior in grade, and is subject to the control and direction of the superior, whose act caused the injury, provided they are both co-operating to effect the same common object. The true reason upon which, I think, this rule rests is, that each one who enters the service of another, takes on himself all the ordinary risks of the eniployment in which he engages, and that the negligent acts of his fellow-workmen, in the general course of his employment, are within the ordinary risks. Omitting numerous cases which sustain the principle we have stated we will content ourselves with citing Wilson v. Merry, Eng. Law Rep., 1 H. L. Scotch Ca. 326; Hall v. Johnson, 34 L. J. Exch. 222; Morgan v. The Vale of Neath Railway Co., 35 L. J. Q. B. 23; Howells v. Landore Simons Steel Co., 10 Eng. Law Rep. (Q. B.) 62; Albro v. Canal Co., 6 Cush. 75 ; Gillshannon v. Stony Brook Railroad Cor., 10 Id. 228; Gilman v. Eastern Railroad Co., 10 Allen 233; Russell v. Hudson Railroad .Co., 17 N. Y. 134; Boldt v. New York Central Railroad Co., 18 Id. 432; Wright v. Same, 25 Id. 562; Port v. Railroad, 2 Dillon 259; Chicago & A. Railroad v. Murphy, 53 Ill. 336; Wonder v. B. & O. Railroad Co., 32 Md. 411; Ryan v. Cumberland Val. Railroad Co., 11 Harris 384; Frazier v. Penna. Railroad Co., 2 Wright 104; Caldwell v. Brown, 3 P. E. Smith 453; Weger v. Penna. Railroad Co., 5 Id. 460; Ardesco Oil Co. v. Gibson, 13 Id. 146; Patterson v. Pitts. & Connells. Railroad Co., 26 Id. 389; Mullan v. Phila. & South. Mail Steamship Co., 28 Id. 25.

In part of'the charge covered by the fourth assignment, the learned judge said to the jury, “that Colonel Mason, Mr. Reese, Mr. Dávis and Thomas Harris were the company’s agents in this case, and for any act of negligence on their part in the line of duty assigned to them, the company is to be held responsible by you.” The question then is, did the evidence show that these persons, or either of them, sustained such relation towards the plaintiff in error as to make it liable for their misconduct ? The company had one general superintendent over all these men. He was one of the witnesses called and sworn in behalf of the defendant in error. He testified that he was superintendent of all its collieries in the neighborhood; that he had the general control of the management of all those collieries; that Col. Mason was the “ outside foreman” and Mr. Rees§ the “ inside foreman” of the Exeter Shaft; that the duties of Col. Mason "were to take charge of the coal when it came out; that he had charge of the brokers, engineers, all outside men — but was not superintendent of the inside work. It appears that Mr. Reese, called by the general superintendent “inside foreman,” was also known as the “mining boss.”. He had the entire control of the inside operations, in regard to working men employed, and the ventilation, subject to orders from the general superintendent. The 8th section of the Act of 3d of March, swy>ra, requires the employment of a mining boss, wdio shall keep a careful watch over the ventilating apparatus, and all things connected with and appertaining to the safety of the men at work in the mine. Presumably these duties were assumed by him. Harris was an assistant under him, and to a considerable extent performed the duties of a mining boss. Mr. Davis was the fire boss.” His duties were to go down the shaft every morning, before the men went to Avork, and to ascertain whether there was any' gas, and report to the men before they went down. Lines was the engineer in charge of the fan and pump engine. He had control of the revolutions of the fan, under instructions from Col. Mason and Reese, and by their orders he “slowed down” the fan a few days prior to the explosion. Alexander Jones was the “driver boss.” His business was to get cars for those needing them, and to see that the drivers properly discharged their duties in moving the coal.

Thus it is shown that the foreman and bosses and their assistants, including the engineer, miners and drivers, whether at work inside or outside of the mine, were all engaged in the same common Avork, and performing duties and services to effect the same general object —that purpose, and that object was, to take the coal from its natural bed, lift it to the surface and prepare it for market. It is true each had his alloted work to perform, yet, nevertheless, they were all fellow-servants or fellow-workmen, seeking to reach the one common object, and accomplish the one common purpose. Some of the employees were superior in the grade of their employment to Alex. Jones, others were inferior. Whether superior or inferior they as well as he, were all under one common superintendent. In his hands, and in his alone Avas the entire charge of the business placed by the company. His negligence might be negligence of the company. In this ease no negligence is imputed to him, either in the selection or retention of unworthy employees, nor in using unsafe machinery. It therefore follows that the learned judge erred in charging- that the company was liable for the negligence of certain of its foremen and bosses, which resulted in the death of another boss. The latter took on himself that risk, as a part of the ordinary risk of his employment, when he became engaged in the same common service with them. Under the most careful management, mining is attended with danger, and persons engaging therein must be presumed to knowingly incur the ordinary risks incident thereto. Nor do we think the liability of the company for the act of its mining boss is changed by the fact that he is appointed pursuant to a statute, Avhere it has a general superintendent over him, Avho has power to direct and control him. We discover no sound reason for any distinction. In either case the company must appoint a competent and suitable person, and provide suitable and safe machinery. He is to “carefully Avatch” and “to see” for the purpose of protecting from danger, all men at work in the mines, says the statute. This, however, does not displace nor supersede his superior, to whom he may be required to report. Howell v. Landore Simons Steel Co., supra.

The conclusion we have reached is not in conflict Avith the law of Mullan v. Philadelphia and Southern Mail Steamship Co., 28 P. F. Smith 25. The facts shoAv that to be a close case; it is very near the dividing line. Yet ave thought the evidence sufficient to go to the jury under proper instructions. As stated in the opinion of our brother Woodward, there Avas some evidence tending to establish that the chief stevedore, whose negligence was alleged to have caused the injury, was clothed with the ultimate power and authority of the Steamship Company. It was further said the jury should ascertain to what extent the plaintiff and the chief stevedore were engaged in a common employment; yet it was expressly said “ it is not designed in any way to impair or affect the rule settled in the cases, on which the court below relied.” Hence that case was not intended to overrule, nor did it jorofess to, any of the numerous decisions which have so clearly settled the law against the right of an employee to maintain an action against his master for the negligence of his fellow-workmen.

We think the learned judge erred in excluding the evidence covered by the twelfth assignment. It bore directly on the question. of Jones’s negligence in entering the gangway in which his body was found. The point submitted by the plaintiff in error should have been affirmed. The fourth, sixth, eleventh and twelfth assignments are sustained. We cannot say there is any substantial error in the .other assignments.

Judgment reversed.


text:
    Cmmonwealth of Pennsylvania, ex. rel. Charlemagne Tower, versus David P. Thompson, Treasurer and Collector of Porter Township. Same versus Cyrus Moore, Treasurer of Schuylkill County. Commonwealth of Pennsylvania, ex. rel. The Philadelphia and Reading Coal and Iron Company, versus Henry Rowe, Treasurer and Collector of Porter Township. Same versus David P. Thompson, Treasurer and Collector of Porter Township.
    1. Under the provisions of the Acts of April 7th 1869, and February 27th 1872, commissioners were appointed to lay out a state road. The road was to be made at the expense of the adjacent owners, and the commissioners were authorized to issue certificates of indebtedness to persons advancing money for its construction, which certificates were to be paid out of the road taxes. The road was constructed and the certificates issued, and in 1874 that portion of the act providing that the road should be built at the expense of the adjacent owners, was repealed. Application was made to the treasurer and collector of the township, and the treasurer of the county, by holders of these certificates, to obtain payment, which was refused, when the holders petitioned the court for writs of mandamus, to compel payment. The court below refused the mandamus. Held (affirming the court below,), that the certificate holders should have brought suit against the supervisors of the township, as provided by the Act of April 15th 1834, and after judgment against them a writ of mandamus might go out against the township treasurer.
    2. Undecided, whether the relators would be entitled to a mandamus against the proper township officers without first obtaining judgment.
    3. It seems, that after judgment against the supervisors, mandamus might lie against the county treasurer to the extent of the taxes in his hands, payable to the supervisors.
    4. Thompson v. Commonwealth, 31 P. F. Smith 314, reviewed.
    March 19th 1878.
    Before Asnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Trunks y, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1878, No. 176, 179.
    These were petitions for writs of mandamus. The petitions set forth that by an Act of Assembly, entitled “ An act for the making of a state road in the counties of Schuylkill and Dauphin, approved the 7th of April 1869,” Pamph. L. 738; commissioners were appointed to view and lay out a state road, from a point in Porter township, Schuylkill county, to Williamstown, in Dauphin county.
    By the 3d section of said act it was provided that the said state road should be opened and constructed by the supervisors of the said townships, at the expense of the individuals or companies owning or occupying lands through which the said road shall be laid out, or continuous or adjacent thereto ; and this to embrace also in said Porter township all the lands north of the road, up to the north line of said township ; provided that no such individual or company shall be compelled to pay or contribute for that purpose, any further quota or other sum, than such road taxes as are or may, be assessed, at the rate and in common with the lands and property of others in the respective township, upon the lands aforesaid or the property thereon.
    That by a supplement to said Act of Assembly, approved the 27th of February 1872, Pamph. L. 171, the aforesaid commissioners were authorized and directed, in the place of the respective township supervisors, to take charge of and carry through the opening and construction of the said state road.
    That by the said Acts of Assembly a certain portion of the road taxes, levied and assessed upon lands therein described, was set apart and appropriated to the payment of the expenses incurred in opening said road, and to the payment of the certificates authorized to be issued by said Acts of Assembly to the owners of lands advancing money to defray the expenses of opening the said state road. The collector of road taxes was also directed to credit the taxes due upon any of said lands, upon said certificates, when so requested by the owner of said lands.
    That the commissioners accepted the said appointment under the aforesaid act; that immediately thereafter they entered upon the discharge of their duties as such commissioners, and viewed and iaid out said road as provided by said act.

      That for the purpose of opening and constructing said road and paying the contractors, the commissioners borrowed a large amount of money upon certificates, or obtained an advance of large amounts of money for which the commissioners gave certificates, according to the second section of the said supplemental act, and that a large number of said certificates, amounting to $25,000 or thereabouts, are outstanding and unpaid, and that such certificates to a large amount are held and owned by Charlemagne Tower.
    It is further averred, in the petition of Charlemagne Tower, in the action against David P. Thompson, that the said Thompson, as the collector of road taxes and treasurer of the said township of Porter, had collected in cash a large amount of taxes, which is applicable under the Act of Assembly to the payment of said certificates, and which Avas collected by said Thompson from the taxes levied and paid to him from and upon the lands and other property which were appropriated by the said Act of Assembly for the making and opening of said state road, and which it was his duty to pay over to the said Tower upon his certificates aforesaid. That after demand made, Thompson refused to pay the said money over to the holder of said certificates as aforesaid.
    In the petition of Tower in the action against Cyrus Moore, it is averred that the said Moore, as the treasurer of Schuylkill county, had collected in cash a large amount of taxes, which is applicable under the Aet of Assembly to the payment of said certificates, and which was collected by said Moore from taxes levied and paid to him from and upon the lands and other property, which Avere appropriated by the said Act of Assembly for the making and opening of said state road, and which it was his duty to pay over to the said Tower upon his certificate as aforesaid. That after demand made upon him Moore refused to pay the said money over to the holder of said certificate.
    In the petition of The Philadelphia & Reading Coal and Iron Company against Henry RoAve, it is averred that the said company being liable for certain road taxes in said township of Porter, which were applicable under said Act of Assembly to the payment of the said certificates, and being the holder of one of said certificates, did present the said certificate to Henry Rowe, collector of road taxes for Porter township, and demanded that he the said RoAve credit said taxes on said certificate, as required by the said Acts of Assembly, but that the said RoAve refused to receive the said certificate in payment of said taxes or to credit the taxes thereon.
    In the petition of The Philadelphia and Reading Coal and Iron Company against David P. Thompson, the same averment is made as to said Thompson as is above set forth in relation to Rowe.
    The petitioners, at the relation of Tower, prayed for a mandamus to compel payment and at the relation of the Reading Railroad to compel the credit of the taxes to be given.

      Writs of alternative mandamus issued and the respondents filed their several answers, wherei.n they averred that the relators were not entitled to writs of mandamus, because they had an adequate remedy at law; that for reasons stated the Acts of Assembly, under which these claims were made are unconstitutional, and that the third section of the Act of 1869, and the entire Act of 1872, were repealed by the Act of June 7th 1874, Pamph. L. 306.
    To these answers the relators severally demurred, and the court overruled the demurrers and refused the petitions. The relators then took these writs, assigning this action for error.
    6r. II. (¿f S. 11. Kaercher, J. W. Ryon and James Ryon, for plaintiffs in error.

      Hughes ffarquhar and William R. Smith, for defendants in error.
    May 5th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The above, cases were argued together, and may be considered in one opinion. Upon petitions filed by the plaintiffs the court below directed an alternative writ of mandamus to issue in each case. The defendants filed answers denying upon the grounds therein set forth the right of the plaintiffs to said writ. To these answers the plaintiffs demurred, and after argument the writs of peremptory mandamus were refused, to which ruling-the plaintiffs excepted, and have assigned the same here for error.

The two suits at the relation of Charlemagne Tower were brought to compel the treasurer of Schuylkill county, and the collector and treasurer of Porter township, to pay over all the taxes and moneys in their hands respectively arising from the lands and property which were appropriated by the Act of 7th of April 1869, Pamph. L. 738, and its supplement of 27th of February 1872, Pamph. L. 171, to the making of a state road in the counties of Schuylkill and Dauphin; the said Tower having advanced to the commissioners named in said Act and supplement, and in accordance with the provisions thereof, a large amount of money, for which he holds the certificates of said commissioners, and for which he, now claims to be repaid.

The two suits at the relation of the Beading Coal and Iron Company were against the treasurer and collector of Porter township, to compel him to credit the amount of taxes due by said company upon certificates held by them for money advanced toward the construction of said road under said act and supplement.

An attempt was made in a previous case (Thompson v. The Commonwealth, 31 P. F. Smith 314), by the commissioners named in the Acts of 1869 and 1872, to compel by mandamus the same parties to pay over the taxes collected by them to the holder of the certificates. We reversed the order of the court below awarding a writ of peremptory mandamus in that case, upon the ground that the Act of 9th of June 1874, Pamph. L. 306, having repealed the 3d section of the Act of 7th of April 1869, and the whole of the Act of 27th of February 1872, the office of commissioners was thereby abolished, and they had no standing in court to enforce the claims of the certificate holders. It was held, however, that the repeal did not affect the contracts of those advancing money on the pledge of the fund appropriated by the Act of Assembly to the payment of the certificates. And as to the remedy it was said: “ Under the constitutional provision forbidding the impairing of contracts, they were * * * unaffected by the repeal; and their remedy against the township is ample by suit, and against the township supervisors and treasurer, and the county treasurer by mandamus.” All that was intended by this remarle, and all that its language fairly implies, was that the certificate-holders, assuming their claims to be valid, could enforce them against the township, as other creditors are by law allowed to do. This is by suit against the supervisors: Act of 15th April 1834, Pamph. L. 538. After judgment a writ of mandamus may go out as provided by the 6th and 7th sections of said act. We do not now decide Avhether the relators would be entitled to their mandamus against the proper township officers without first obtaining judgment. It is clear that this proceeding is not against proper parties; the omission of the supervisors is fatal. The 96th section of the Act of 15th of May 1834, requires the township treasurer to pay all moneys received by him from taxes or otherwise on orders drawn by the supervisors of the township, and as has already been said by the 5th section of the same act, all suits by or against the township must be in the name of the supervisors. The latter are the officers upon whom the duties of the commissioners were devolved by the repeal of the act creating said commissioners, and before the township can be required to pay the certificates or to credit the taxes upon them, it must have an opportunity to defend, which can only be done by making the supervisors parties. The township may or may not have a defence. We cannot anticij>ate this, and, therefore, will decide no question in this proceeding which it would be entitled to raise in a suit against the supervisors.

The same reasoning applies with equal force to the case against the county treasurer. His duty is to pay out the moneys received by him upon the orders of the county commissioners : See sect. 37 of the Act of 1834; and to pay over taxes on unseated lands to the township supervisors: Act of March 30th 1811, 5 Sm. L. 251. The county treasurer has no means of information to enable him to set.up a defence if one exists, or even to know if it exists, nor is he the proper officer to do so. The township supervisors only can know of any defence to the payment of the money held by the county treasurer from taxes on unseated lands. After judgment against them mandamus might lie against the county treasurer to the extent of the taxes in his hands payable to the supervisors. It will be time enough, however, to decide this question when it arises.

The proceedings in these cases not being against the proper parties, the order refusing the mandamus in each case is affirmed.