Davis v. Illinois Collieries Co.

Mr. Justice Scott delivered the opinion of the court: The declaration herein charges a willful violation of the statute, which reads as follows: “In case the galleries, roadways or entries of any mine are so dry that the air becomes charged with dust, the operator of such mine must have such roadways regularly and thoroughly sprayed, sprinkled or cleaned, and it shall be the duty of the inspector to see that all possible precautions are taken against the occurrence of explosions which may be occasioned or aggravated by the presence of dust.” (Hurd’s Stat. 1905, chap. 93, sec. 20, clause g.) In support of the contention that the court erred in refusing to direct a verdict, it is said that there is no evidence to sustain the averment of the declaration to the effect that the injury was attributable to dust permeating the air. The evidence of the plaintiff tends to show that the first shot fired, generated gas; that a later shot caused this gas to explode, and that the explosion of this gas so generated by the firing of the first shot was aggravated by dust in the air to such an extent that it inflicted the injuries from which appellee suffered, when it would not have done so had the entry been properly cleaned or sprinkled. The declaration avers that the so-called “dust explosion” was caused directly by the blast, while the proof tends to show that the blast exploded gases resulting from the firing of a previous shot, which explosion, by reason of dust permeating the air, became the so-called “dust explosion.” This, at most, is merely a variance. If appellant desired to avail itself thereof it should have pointed the same out on the trial, when appellee would have had an opportunity to seek leave to amend. It is urged that the evidence offered by appellee to show that there was an explosion of gases, which was aggravated by the dust, and which, as a direct consequence of such aggravation, became the proximate cause of the injury, is so unreasonable as to be unworthy of credence, and that for this reason it does not tend to support the averment of the declaration in this regard. It is not impossible that this testimony is true. The incidents detailed are not inconsistent with fixed natural laws. The weight to be given the evidence was a question for the jury. Chicago City Railway Co. v. Henry, 218 Ill. 92. It is also contended that there is no evidence of a willful violation of the statute. The evidence of the appellee showed that the attention of the mine examiner had been called to the dust in the entry and the necessity that some sprinkling should be done, several weeks before the explosion occurred, but that the roadway had not been sprinkled or cleaned. The proof of the appellant was, that on the morning of the day in question its mine .was examined by its certified mine examiner; that he made the usual report on that morning showing that the roadway in question had been properly sprinkled, and it is urged that as appellant had employed the proper person to inspect the mine, and that as such person reported the roadway properly sprinkled, appellant could not be found guilty of a willful violation of the statute, because it had performed its full duty by placing the roadway in a condition satisfactory to the examiner authorized by statute to make the inspection. This amounts to saying that the examiner had the power to adjudicate the question whether the roadway needed to be sprinkled or cleaned. The examiner was the vice-principal of appellant. It was the duty of appellant to comply with this statute and to employ an examiner who would see that the entry was sprinkled or cleaned. The fact that the examiner employed had the statutory certificate in nowise relieved appellant from its duty in the premises. The willful failure of the manager or examiner to observe the provisions of the statute is the willful failure of the operator, even where the operator has no actual knowledge of the delinquency of the manager or examiner. (Henrietta Coal Co. v. Martin, 221 Ill. 460.) The purpose of the statute requiring the employment of an examiner bearing the proper certificate is merely to make the employment of a competent person as certain as it can .be made by the. law. If evidence offered for the appellee be true, the manager had knowledge for many days that this roadway needed cleaning or sprinkling, and with such knowledge failed to have the same .either cleaned or sprinkled. Such failure, under such circumstances, was a conscious omission to perform a duty and was a willful failure to obey the statute. Carterville Coal Co. v. Abbott, 181 Ill. 495; Donk Bros. Coal Co. v. Peton, 192 id. 41. It is also insisted that appellee fired the shots in an unskillful manner and by a method forbidden by the statute, and that his acts were the cause-of the explosion. The evidence on his part indicates that, even if this were true, the explosion so caused was merely the explosion of gas resulting from the firing of one of the earlier shots; that the explosion of that gas could not'have reached appellee at the place in the mine where he was injured had the roadway been sprinkled or cleaned, and that the explosion reached him and became harmful to him because it was aggravated and made more destructive by the fact that the air in the roadway was charged with dust. Under these circumstances appellee’s negligence, if it existed, was merely contributory and would afford no defense under our statute in reference to mines and miners. The court did not err in refusing to direct a verdict. Appellant requested instructions advising the jury that appellee could not recover unless he established the averments of his declaration by a clear preponderance of the evidence. The court modified these instructions by striking out the word “clear,” and directed the jury to find for appellee if his cause was established by a preponderance of the evidence. Appellant in this connection refers us to cases holding that in an action to recover a penalty given by a penal statute the cause of the plaintiff must be established by a clear preponderance of the proof. Those cases are not in point, for the reason that this is not an action to recover a penalty. It is also suggested that the willful failure to observe the provision of the statute charged by the declaration is made a misdemeanor by section 33 of chapter 93, supra, and that appellee should therefore have been required to show the violation of that statute by evidence which would convince beyond a reasonable doubt. We do not think appellant in a position to raise this question on appeal. No instruction was offered presenting this view. It is clearly apparent from the instructions asked, that appellant sought to have the issues submitted to the jury on the theory that the rule in reference to the sufficiency of the evidence applicable was the one obtaining in actions to recover a forfeiture inflicted by a penal statute. A party cannot, in a reviewing tribunal, succeed upon a theory of the law inconsistent with that upon which -he tried his cause in the nisi prius court. Objections to the first, second and third instructions given at the request of appellee are hypercritical, except one relating to the second instruction. That instruction advised the jury, among other things, that the law required appellant to have the roadway sprinkled or cleaned if it was “dry and dusty.” The statute imposes that duty if the roadway is so dry that “the air becomes charged with dust.” The word “dusty” is not necessarily synonymous in meaning with the language just quoted, but in the ninth instruction given at the request of appellant the jury were told that the operator is only required to sprinkle the entry when the same is so dry “that the air becomes charged with dust.” The two instructions, read together, correctly state the law. Three instructions asked by the appellant were refused. The first includes a proposition for which the proof- affords no basis. The objection to the second is disposed of by what has been said in this opinion in reference to the assignment of error which challenges the action of the court in refusing to direct a verdict. The third is an abstract proposition of law. The judgment of the Appellate Court will be affirmed. Judgment affirmed.