Schlapp v. McLean County Coal Co.

Mr. Justice Scott delivered the opinion of the court: It is contended by defendant in error that the statute in question does not apply to the road within the room in which the accident occurred in this case. We have found it unnecessary to determine that question. If it be conceded that the statute does apply to this road and that defendant in error was guilty of a willful violation of that statute in failing to provide the places of refuge, the record is still entirely barren of evidence tending to show that the absence of such places of refuge was the proximate cause of this injury. The road in question was two hundred feet in length. From the end next the face of the coal it sloped down toward entry No. 2 south for a distance of one hundred and twenty-five feet. From the foot of this incline, proceeding toward the entry, the road ascended slightly for about ten feet, and from the top of that ascent it descended slightly or was practically level to the entry into which it led. When the car was started it was necessary to sprag the wheels to keep it from running on to the mule while going down the incline. When the car reached the foot of the incline it was necessary to remove the sprags so that the mule could pull the car up the ascent, and it was while plaintiff in error was engaged in removing the sprags at that point that the mule unexpectedly started and the injury resulted. The statute did not, in any event, require defendant in error to construct a place of refuge at the place where this car was stopped. If it required the construction of places of refuge along this road, defendant in error might construct them in such places as it saw fit, provided the places were not more than twenty yards apart. If the statute applies, defendant in error could have complied therewith without making a place of refuge within twenty-five feet on either side of the point where the injury occurred. As was well said by the Appellate Court, the proximate cause of the injury was not the failure of defendant in error to provide places of refuge within such distances of. each other as the statute contemplates, but the proximate cause was the absence of a place of refuge or the absence of sufficient space to enable the plaintiff in error to remove the • sprags without danger at the particular place where the car was stopped. Whatever view may be taken with reference to the existence of a statutory duty on the part of defendant in error to construct places of refuge along this road, it cannot be contended that the statute required it to construct a place of refuge at this particular point or within twenty-five feet thereof on either side: It follows that a verdict for the defendant was properly directed. The judgment of the Appellate Court will be affirmed. Judgment affirmed.