Appeals, Nos. 11 and 14, Jan. T., 1960, from order of Court of Common Pleas of Carbon County, Jan. T., 1958, No. 56, in case of Alexander R. Chamberlain v. Penn-Rich Contracting Company, Inc. Order reversed; reargument refused July 15, 1960.
Joseph H. Foster, with him Martin H. Philip, and Cletus M. Lyman for plaintiff.
J. Wesley McWilliams, with him Glenn A. Troutman, and Loose, Kerestes & Bayer, and McWilliams, Wagoner & Troutman, for defendant.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK.
The single question is the plaintiff's contributory negligence. He has appealed because the court below held him guilty of it in an illogical order refusing judgment n.o.v. but granting a new trial on its own motion for the reason given.
Plaintiff had deep-mined the property, which is near Junedale in Carbon County and on which he was hurt, but a cave-in had buried his machinery. He then concluded an agreement with defendant for the latter to strip-mine the property. An addendum provided that any machinery recovered was to be considered plaintiff's and left for him to remove, and he was given the right to enter the property for that purpose. The contract also provided that plaintiff operate certain water pumps to help defendant, and he and his employe were at the property daily.
On the day of the accident, March 19, 1957, defendant uncovered a part of one of plaintiff's buried machines. Plaintiff was notified and reached the scene at about nine o'clock in the morning. He and his pump operator attached a chain to the buried machine, but when the defendant's shovel operator tried to pull it out, the chain broke. While this was going on, other employes of defendant were drilling blasting holes in the coal with a jackhammer. When plaintiff sought to continue salvaging his buried machine, defendant's officer, Snyder, told him that they had to go on with the stripping and that he should wait until afternoon, when the removal of coal and rock would have made salvage easier.
Plaintiff then left the property and went to the defendant's office at least half a mile away from the pit. While he was gone, defendant set off one blast to loosen the coal, and by about one o'clock seventy per cent of it had been removed. While in the office,
plaintiff was told by Snyder around noon to "go down and get [his machine] out of the stripping now" as it was interfering with their production.
Plaintiff and his employe returned to the pit, where they met Ray, defendant's foreman, who assented to plaintiff's taking a cable into the ...