Coal Run Coal Co. v. Jones

Lacey, P. J. The appellant, by counsel, urges various causes for error. 1st. That Sec. 4, Chap. 93, of the law of 1883, in regard to the examination of the working place of miners, does not apply to a case like this, but that appellant was sinking a shaft preparatory to opening a coal mine and that the men were not mining. 2d. The court refused to give the appellant’s 6th and 14th refused instructions, which raised .the question of whether the deceased did not come to his death by the negligence of fellow servants, where reasonable care had been exercised by appellant in selecting them. 3d. The verdict was against the weight of the evidence, and especially on the point that the deceased was not in the exercise of ordinary care at the time of the accident in this, that he was negligent in tapping his lamp on the toe of his shoe in the manner he did. 4th. The court excluded the evidence of Mary J. Evans. In the first place we shall consider the first point of objection in regard to the applicability of the statute. The 4th section of the statute entitled “ Health and Safety of Miners,” in force July 1, 1883, Sessions Laws 1883, page 114, as far as applicable to this case provides as follows: “The owner, agent or operator of every coal mine, whether operated by shaft, slope or drift, shall * * * in all mines where fire damp is generated, every working place where such fire damp is known to exist, shall be examined every morning with a safety lamp, before any other persons are allowed to enter.” In the first place, it is insisted that this is not a mine within the meaning of the statute. That the statute only contemplates a case where the miners are engaged in mining coal, and that the working spoken of in the statute means the place at the point of digging the coal. With this construction we can not agree. We think the word “mine” includes a work like this, and although the workmen were not actually mining at the time, they still had a working place and were working in a mine, and exposed to be injured by the explosion of fire damp. The lower vein was ready to work except for the stopping up of the entrance to the first vein, and the gas was generated from the coal in the mine. There was just as much necessity for the protection of the workmen who were working in this mine as though they had been actually mining coal, and the statute does not provide that the workmen in the mine shall be mining coal. Evidently any workman in a mine, at whatever employment he may be engaged, is included in the language of the statute. Besides this the evidence sliowsthat these workmen we e actually engaged in mining coal from the first vein when the accident occurred, and the fact that such mining o peration was to becarriedonrequiredmoreoftheshafttobecovered than otherwise would have been required. The deceased himself was about to pick up and place in the cage a lump of coal at the time the explosion took place. Judging from the evil intended to be cured by this act and the dangers to be guarded against we can not doubt but it was the intent of the legislature to cover a case like this. To hold otherwise we think would be to place too narrow a construction on the act. We see no error then in the court below holding as it did on this point. But the instruction of the court below on this point is objected to on another ground, as we understand the objection, and that is, there was no evidence on which to base it. It is said in argument that “Appellee in his brief argues that it was the duty of appellant to cause said shaft to be examined by a suitable person with a safety lamp in the morning before the men went to work in the shaft. * * On that question we remark, that the theory of both sides in this case is that until a platform was erected across said shaft there could be no accumulation of gas in said shaft, and as said platform was erected the morning of the day the accident occurred by the men themselves, who were then re idy to go to work, that such examination would have been a fruitless search for gas and a task wholly unnecessary, * * and could have resulted in no additional safety "x" to the employes.” If this Were so and perfectly clear, the court erred in calling the attention of the jury to the statute, for unless some injury could have resulted on account of this neglect, the instruction would only have tended to mislead the jury. We have examined this evidence with care to see if this statement is correct, and we are unable to say that it is. The most that we can say is that it leaves the matter doubtful in our minds as to whether a search for gas in the morning before the platform was erected would have disclosed any dangerous quantities, such as would have created a sense of danger in the mind of the overseer and induced him to adopt preventive remedies, or to have shown him it would be dangerous to set men to work as they were. It was the object of the statute to surely exjiose and make known by such an examination all danger from fire damp. Where the evidence tends to show that an examination might have prevented the injury, the instruction would be proper to be given. According to some of the evidence all circulation of air from the bottom of the mine to the first vein was cut off by means of the accumulation of the water in the bottom of the mme before this platform was put in, and in view of the intention of putting in the platform, it would be important to know how much was accumulated in the shaft below that point to know how soon the danger point would be reached after the platform was put in place. And the fact of there being an accumulation of gas below the first vein before the platform was erected is strengthened by Hillger’s testimony that the gas escaped very slowly — was almost stopped by the water; otherwise there could not have sufficient quantity accumulated to cause an explosion in three and one half hours after the platform was erected. The evidence, we think, was sufficient to justify the instruction. In finishing the work afterward, Hillger complied with the statute in regard to the examination with a safety lamp before the men went to work. As to the refusal of the court to give the sixth and fourteenth instructions, on the question of fellow servants, we see no error. This was a cause of action in part based on the statute and in part on the failure of the appellant to use due care by proper appliances to keep the shaft clear of fire damp, and the doctrine invoked by the instructions would not have been applicable and the giving of them mischievous. The question of whether the appellee’s decedent was in the exercise of ordinary care to prevent injury was a question of fact that under all the circumstances we would not say that the jury were not justified in finding as they did. That the court excluded the evidence of Mary E. Evans is the last assigned error. The precise point seems to have been held against the claim of appellant in Conant v. Griffin, 48 Ill. 410. The court below refused the defense the permission to show that Ann Barber was not the widow and Frank Barber not the legitimate son, the same as, in the present case, the court refused appellant the claim he made to have the right to show that Mary Jones was not the widow of deceased and her children not legitimate. The court said that “ the averment that Ann Barber was the widow and Frank the son was surplusage, the requirement of the statute being met by the allegation that the deceased left a widow and next of kin. This was the gist of the action. * * * Whether she or Ann Barber was the widow was wholly immaterial. The fact would be important when the administrator is called upon to make distribution. The validity of the marriage will have to be passed upon by the probate court,” etc. In T. W. & W. R. W. Co. v. Brook, 81 Ill. 248, this case was cited and approved, and a similar doctrine held. In R. R. L. & St. L. R. R. Co. v. Delaney, 82 Ill. 199, the case of Conant v. Griffin, supra, was again cited and approved, and a similar doctrine held. We can not find that the Supreme Court has ever said or intimated that the doctrine in Conant v. Griffin has been doubted or overruled. The case cited by appellant,-of the Quincy Coal Co. v. Hood, Adm’r, etc., 77 Ill. 68, was a suit where the declaration averred that John Allen Hood, a minor, left surviving him his father, the plaintiff, to whom the damage recovered can be distributed. He asked the court to instruct, and it did instruct, the jury, that if they found the defendant guilty then they should assess the plaintiff’s damages at the amount of the pecuniary loss sustained, if any, by the next of kin to the deceased; “ that is to say, his father, brothers^ mother and sisters.” The court held this to be erroneous.. The court reversed the judgment for the reason that the instruction enlarged the scope of the plaintiff’s damages on the. trial and. instructed the jury to .take into consideration other next of kin whose right to damages must be based on another and different. ground from that of the father — and it was calculated to take defendant by surprise. The evidence showed, against objection, there was a mother and five brothers and sisters., The court held that the naming of the father specifically compelled the plaintiff to prove it as laid, but . if he had named the. widow or next of kin generally then the rule would have been different. In this it seems to oppose the decision in Conant v. Griffin, as in that the name of the widow was treated as surplusage ; yet that case is .not overruled by reference. As the Conant-Griffin case has never been .overruled, but referred to and approved since in the Hood cuse,-supra, we adhere to the rule announced in the former case. The most serious objection that we :see to the Conant case or the doctrine of the. Hood case (77 Ill.), and the same, principle found in other, cases, is that the court seems to decide that the measure of the recovery is limited-to .the circumstances of the. particular individual— his or her ■ interest in the life of the deceased — not the full value of the life, as a whole. In .the Oonant case the opinion necessarily presupposes that the life was worth just the same to one widow and set of children as another; that is, the entire value of a life as.a .whole. In such-case it .would be indifferent to defendant whether one or another was entitled to ifj as the measure of recovery would be the same no matter who got the proceeds. In the. Hood case, above, the next. of kin were collateral, and not the direct heirs. They were the father, .mother, brothers and sisters of the deceased, and not entitled as a matter of law to anything for support by virtue of their relationship. Hence the proof might show them to be entitled to something or nothing, according to circumstances. But in the case before us the law imposed on the father the duty of support to his wife and minor children. It may be, and from expressions in the Hood case we are induced to believe, that the court regards that as a material difference. The facts in this case are in effect the same as the facts in the Conant-Griffin case, and from the fact that that decision is of long standing and has often been approved, we can not doubt that the doctrine will be adhered to as there announced. Again, the point of the decision in the Hood case was one of pleading simply, and the question here not involved. There being no error in the record the judgment is affirmed. Affirmed.