Superior Coal & Mining Co. v. Kaiser

Mr. Justice Vickers delivered the opinion of the court: It is admitted that appellee was injured by a fall of coal at the time and place alleged in the declaration. He bases his right of recovery upon the theory that his injuries are directly attributable to the carelessness and negligence of appellant in failing to exercise reasonable care and caution to provide him with a reasonably safe place in which to work, by allowing the cross-cut to be developed in advance of and so close to the rib and face of the sixth west entry as to loosen, crack and weaken the rib and face of the entry at the point where he was at work. At the close of appellee’s evidence, and again at the close of all the evidence, appellant asked the court to instruct the jury to return a verdict of not guilty. This the court refused to do, and it is contended that such refusal was error, because the evidence, with all the legitimate and natural inferences which may be drawn therefrom, was insufficient to sustain the verdict for appellee. It is first insisted that “the appellee assumed the risk of the injury from the negligence charged in the declaration.” The evidence shows that appellee, on the day of the injury, examined the coal in the face of the sixth west entry before beginning work and that it appeared to be solid and safe. The appellant’s mine manager says that he examined the face of the sixth west entry on the same morning, before appellee arrived, and that it was safe. If, upon examination by two experienced miners, the ribs and face of the entry where appellee worked presented the appearance of safety, the jury were justified in finding that appellee did not assume the risk, and that he had exercised due care and caution for his own safety. When he examined the coal in the face of the entry where he was to work and found it apparently safe, he had the right to assume that appellant had discharged its duty toward him in reference to any dangers that might arise from the proximity of the cross-cut to his entry. Appellant’s mine manager had been in the cross-cut on the morning of the injury, but he admits that he did not sound the face of the coal in the cross-cut, and determined from its appearance alone that it was solid. If he had made a thorough examination of the face the danger might have been discovered by him and the injury averted. The failure to do so was a failure to discharge the duty which rested upon appellant to use reasonable care and diligence to ascertain that appellee was being provided with a safe place in which to work. While appellee was bound to take notice of defects which were patent, he was not required to make an examination for hidden defects, and he might properly act upon the presumption that appellant had used reasonable care in developing the cross-cut and that it had examined it for danger before permitting him to go to work. (Hines Lumber Co. v. Ligas, 172 Ill. 315; Leonard v. Kinnare, 174 id. 532; City of LaSalle v. Kostka, 190 id. 130; Himrod Coal Co. v. Clark, 197 id. 514.) The rule that the servant assumes the ordinary risks incident to the work or business in which he is engaged, presupposes that the master has performed the duties of care, caution and vigilance which the law places upon him. Western Stone Co. v. Muscial, 196 Ill. 382. It is insisted that the rule which requires the master to furnish a safe place to work does not apply in the case at bar, for the reason that this rule cannot be invoked in that class of cases in which the servant is employed in constantly producing changes and temporary conditions for the time being more or less hazardous. To this we cannot assent. This rule does not apply here, for the reason that appellee had no part in producing the condition which led to his injury. He watched the condition of the face of the entry where he was employed. The dangerous condition was developed in another locality by the development of the cross-cut. He had not worked upon the face of the entry between the time he examined it in the morning and the occurrence of the injury. He had produced no change in that regard. He was occupied in loading coal that had been cut out- by the machine. Appellant urges that the negligence charged in the declaration in this case is not shown by the proof to have been the proximate cause of appellee’s injury. The substance of the charge referred to in the declaration is, that the condition which led to the injury was produced by the development of the cross-cut in advance of the sixth west entry and by the shooting of coal at that point, whereby the face of the entry was weakened so that it fell and produced the injury. We have examined the evidence in the record with reference to this point, and we are unable to agree with appellant that there was no evidence which fairly tends to support the declaration. Appellant contends that appellee and the machine runners and shooters working in the sixth west entry and the crosscut were fellow-servants. This statement is not in accord with the facts. The evidence is that appellee did not work in the cross-cut at any time. The only theory on which appellant can invoke the fellow-servant rule is, that appellee, working in the sixth west entry, and the machine runners and shooters working in the cross-cut, were fellow-servants. Under the evidence in this case the question of fellow-servants is one of fact to be determined by the jury. Therefore the judgment of the trial court, and its affirmance by the Appellate Court, are conclusive upon us on this point. We find no error in the record and the judgment of the Appellate Court is affirmed. judgment affirmed.