Consolidated Coal Co. v. Wombacher

Mr. Justice Scholfield delivered the opinion of the Court: Since, in this class of cases, our jurisdiction is limited to the determination of questions of law, our consideration of appellant’s argument must be confined to the questions:— First, is the declaration sufficient to sustain the judgment? second, can we consider whether there is a variance between the allegations and the evidence? and third, ought the court to have instructed the jury to find for the defendant ? The other parts of that argument relate wholly to the effect and weight of the evidence, and ought therefore to have been presented to the Appellate Court in a petition for rehearing, where, alone, they would have such relevancy as would entitle them to consideration. The questions before us will be briefly considered in the order stated. First—It is, among other things, sufficiently stated in the declaration that appellant is owner and operator of a coal mine, and has in its employ a pit boss, to whom it has given authority to direct and control the labors of those employed in its mine; that appellee was employed by appellant to labor in its mine, under the direction and control of this pit boss, and was so laboring; that this pit boss, knowing that there was loose overhanging rock in the roofing of the mine, insufficiently braced to prevent its falling and doing great personal injury, falsely represented to appellee that there was no danger to be apprehended from overhanging rock, and directed him to work under such loose overhanging rock in the roofing of the mine, and that appellee did then, pursuant to such direction, work thereunder, and while doing so, and without fault or negligence on his part, said overhanging rock fell from the roofing of the mine upon appellee, and severely wounded and injured him. These facts, prima facie, make a case of negligence. That appellee was guilty of contributory negligence by knowing of the danger and failing to observe due care to avoid it, or otherwise, if susceptible of proof, was matter of defense which need not have been anticipated and negatived in the declaration. (Cox v. Brackett, 41 Ill. 222; Illinois Central Railroad Co. v. Simmons, 38 id. 242.) Where the negligent act of one servant causing injury to another is the direct result of the exercise of the authority conferred upon him by the master over the servant injured, the master is liable. In such case, the servant whose negligent act causes the injury stands in the place of the master, and the servant who is injured has no discretion or independent judgment, but owes the same duty of obedience that he would if the master were himself acting. Chicago and Alton Railroad Co. v. May, Admx. 108 Ill. 288; Wabash, St. Louis and Pacific Ry. Co. v. Hawk, 121 id. 259; Rolling Mill Co. v. Johnson, 114 id. 57; Northern Pacific Ry. Co. v. Herbert, 116 U. S. 647; Chicago, Milwaukee and St. Paul Ry. Co. v. Ross, 112 id. 377; Thompson, Admr. v. Chicago, Milwaukee and St. Paul Ry. Co. 14 Fed. Rep. 564. Second—No evidence was objected to as irrelevant and not tending to sustain the declaration, and admitted by the court over that objection, and no motion was made upon the trial to exclude all or any evidence from the consideration of the jury for the reason that it was irrelevant and did not tend to or actually sustain the declaration. The question of variance was presented for the consideration of the court for the first time in the Appellate Court. This was too late, and we therefore can not now entertain that question. City of Elgin v. Kimball, 90 Ill. 356; Indianapolis and St. Louis Ry. Co. v. Estes, 96 id. 473; Ladd v. Pigott, 114 id. 647; Wabash, St. Louis and Pacific Ry. Co. v. Coble, 113 id. 115; City of Mattoon v. Fallin, id. 249; Horne v. Walton, 117 id. 130; Schoonmaker v. Doolittle, 118 id. 605; Dulin v. Prince, 124 id. 76. Third—We think there was evidence tending to sustain the material allegations of the declaration, however insufficient we' might regard it if we were required to determine where is the preponderance. Ritzheimer, the night pit boss, is shown to ' have had sole charge of appellee and other laborers at the time appellee was injured. As to his authority he said: “I could tell a man to go and do this, or quit.” That, clearly, is all that his master could have done. There is evidence that the roofing of the room in the mine in which appellee was working when injured was in an unsafe condition, and that a laborer had previously refused Ritzheimer to work in it at day wages because of its condition. Appellee, among other things, testified that he was a farmer, but latterly had been a laborer; had worked in this mine from November, 1887, until February 7, 1888,—the day he was injured; and his examination then proceeded thus: Q. “State where you regularly worked in that mine. A. “For something over a month I had been working in the entry. I was throwing coal into the boxes. I was loading the coal. The coal was blasted by some other persons. I had nothing to do with shooting the coal down. I am nót a practical miner. • That was done by extra men. Q. “State whether or not you had anything to do with propping up the roof of the mine. A. “No; I had nothing to do with that. The mining machine had not got around to the entries yet, and I had no work to do, and was sitting down in the entry, waiting, when Peter Ritzheimer, the night pit boss, came along, and said to me, ‘You have nothing to do?’ I said ‘No,’ and he then said, ‘Come along with me into that room—there is a load of coal there.’ I then went into that room and worked there about three hours before I was hurt. The top fell down on me. I laid there, covered with rock and slate, until I was taken out by others. * * * I am paralyzed in the lower extremities. My bladder is also paralyzed. I have been in that condition since the accident. I am a married man, and have a family of five children,—the oldest is thirteen years of age. I am without means, and had to depend upon my wages for support. I never worked in the room where I was hurt, before this night in which I was injured. I knew nothing of its condition as to safety.” He also said that no one told him that it was dangerous. Under this evidence, Ritzheimer is to be assumed to have known of the danger from the roof, and his negligence in failing to communicate it to appellee is the negligence of appellant. By permitting Ritzheimer to act as he did, appellant is es-topped to deny his authority in that respect. (Lake Shore and Michigan Southern Railroad Co. v. Brown, Admx. 123 Ill. 162.) And a servant in entering upon an employment, as appellee here did, assumes only such risks as he has notice of, either express or implied; and it is culpable negligence in the master to fail to notify the servant of risks which are not patent, and of which he is not cognizant from the nature of his employment. United States Rolling Stock Co. v. Wilder, 116 Ill. 100; Citizens’ Gas Light Co. v. O’Brien, 118 id. 174. The judgment is affirmed. Judgment affirmed.