Mt. Olive & Staunton Coal Co. v. Rademacher

Mr. Justice Magruder delivered the opinion of the court: First—Appellant claims that the trial court committed an error in permitting the appellee to prove that there were no props at the bottom of the mine. Several questions were asked of several witnesses by the appellee, requiring them to state whether or not there were any props at the bottom of the shaft at a certain time.= These questions were objected to by counsel for the appellant upon the ground that the statute does not require props to be kept at any• particular place; but the objections thus made were overruled,' and the witnesses were allowed to answer, and the appellant excepted. There was no error in this ruling of the court. The witnesses had stated that, when there were props on hand, they were kept at the bottom of the shaft, where the cages stopped when they came down into the mine. In view of this testimony there was no objection to asking the witnesses, whether there were any props at that particular place, where the props were usually kept when they were on hand. The second count of the declaration alleges, that the appellant willfully failed to keep the props at the bottom of the shaft, but the declaration was not demurred to, and hence the question whether the props were or were not at the bottom of the shaft was one of the questions put in issue by the pleadings. There was, however, proof tending to show that there were no props on hand at all for use by the miners, either above outside of the mine, or below inside at the bottom of the shaft, or elsewhere. The evidence thus admitted tended to show the absence of props, which the statute required the appellant to have on hand, and, therefore, there was no error in its admission. Second—Appellant claims that instructions Nos. 2 and 3, given for appellee upon the trial below, were erroneous upon the alleged grounds that they ignored a certain defense set up by appellant, and were inconsistent with instructions given by the court below for appellant. An instruction, which tells the jury that, if they believe from the evidence that the plaintiff has proved his or her case as laid in his or her declaration, or in either count thereof, then they will find the issues for the plaintiff, has been held by this court to be unobjectionable in a number of cases. (Pennsylvania Co. v. Marshall, 119 Ill. 399; Chicago City Railway Co. v. Hastings, 136 id. 251; Ohio and Mississippi Railway Co. v. Porter, 92 id. 437; Race v. Oldridge, 90 id. 250; Logg v. People, 92 id. 598). As to instruction No. 3, which was given for the appellee, a similar instruction thereto was held to be good in Catlett v. Young, 143 Ill. 74. The instruction in the case of Catlett v. Young, supra, was as follows: “The law makes it the duty of every operator and owner of a coal mine to securely fence the top of the shaft by gates properly protecting the shaft and the entry thereto, and if such operator fails willfully to so fence the shaft, and by rea-' son of such failure a person employed about the mine is killed, the owner or operator is liable to the widow of the person so killed for damages, not to exceed the sum of $5000.00.” If this instruction is good, as it was there held to be, then we see no reason why the instruction numbered 3 in the case at bar is not also good. Moreover, instruction numbered 3, given for the appellee- in the present case, is expressed in the language of the statute itself, and for that reason is not erroneous. Where an instruction is given in the language of the statute, it must be regarded as sufficient, because laying down the law in the words of the law itself ought not to be pronounced to be error. (Town of Fox v. Town of Kendall, 97 Ill. 79; Chicago, Burlington and Quincy Railroad Co. v. Haggerty, 67 id. 113; Race v. Oldridge, supra; Duncan v. People, 134 Ill. 110). The defense which, as it is claimed by counsel for appellant,' the two instructions, so given for the appellee, ignored, is based upon a contract alleged by. the appellant to have been made between it and the deceased, John Rademacher. It is said that, by the terms of this supposed contract, John Rademacher agreed for extra wages to take down the overhanging slate and thereby dispense with the necessity of props. Counsel for appellant says in his brief: “In the case at bar it was contended that it was necessary for the safety of employees and the proper working of appellant’s mine, to take down the slate from the roof of the entry, in which Rademacher was working, and that he and Herbeck had been paid for so doing a certain price previously agreed upon; and that the statute, which provides that props shall be kept on hand- and furnished to miners, to enable them to prop and secure their working places, had no application.” Whether or not such a contract was made was a question of fact for the jury. The evidence was conflicting as to the existence of any such contract, the evidence on the part of appellee tending to show that there was no such contract, and the testimony of appellant’s pit-boss tending to show that there was such a contract. At the request of the appellant a special interrogatory was submitted to the jury requiring them to return, with their general verdict, an answer to the following question: “Was Eademacher employed to take down the slate which injured him?” And to that special interrogatory the jury returned as their answer “No.” There was, therefore, a special finding by the jury that no such contract was made. It is difficult to see how the .appellant could have been injured by the omission of a reference to the defense, based upon such a contract, in the instructions in question. The instructions, however, were not erroneous by reason of the fact that they contained no reference to the defense insisted upon by appellant. The plaintiff is only obliged to present the law correctly in his instructions applicable to his theory of the case, and is not bound in every instruction to anticipate and exclude every possible defense. (Mitchell v. Milholland, 106 Ill. 175; Logg v. People, supra; Judy v. Sterrett; 153 Ill. 94; Sheridan v. Hibbard, 119 id. 307). It is not necessary in an instruction to negative matter of mere defense. (Underwood v. Wolf, 131 Ill. 425). Several instructions were given for the appellant by the court below, which presented to the jury the defense set up by the appellant as based upon the alleged contract. Whether these instructions were correct or not, they gave the appellant the benefit of its alleged defense before the jury. In the recent case, however, of Mt. Olive and Staunton Coal Co. v. Herbeck, (ante, p. 39,) an instruction, similar to instruction numbered 3, was held to be good, and to be unaffected, as to its correctness, by the alleged agreement, if any such agreement existed. When all the instructions are read together as one charge, they present no inconsistency, which could have had the effect of misleading the jury. The judgment of the Appellate Court is affirmed. Judgment affirmed.