Consolidated Coal Co. of St. Louis v. Scheiber

Mr. Justice Sample delivered the opinion oe the Court. The appellant contends, first, that there is not a good count in the declaration; second, that the injury was the result of one of the usual risks of the service; third, that the court erred in not excluding certain evidence referred to in the statement, in not instructing the jury to find for the defendant, and in permitting counsel for plaintiff in the argument to the juiy to refer to and base an argument upon the failure of the timberman to testify. If it is assumed the first three counts fall within the rule of law laid down in Con. Coal Co. v. Young, 24 Ill. App. 255, and Same v. Scheller, 42 Ill. App. 619. which hold that there is no statutory or common law duty resting in mine owners to prop the roof uso that the same would not fall,” that is, that they were not insurers that the roof was absolutely safe, there were other good counts in the declaration. That is all the cases purport to hold in that regard. Those cases do not purport to hold the mine owners do not have to exercise reasonable care for the safety of their employes. In the Scheller case, supra, p. 630, it is said: “ Where a timberman is employed, and the miners are thereby relieved of the duty and labor of setting props, as may be conceded was the case here, they are not also thereby relieved of the duty of observing the conditions and promptly reporting to the mine manager or timberman any signs of danger they may discover which requires his services.” But, as 'further stated in that case, p. 638, “ notice of its condition before it fell is not averred, whatever may have been intended;” and, as further held, there was no proof of actual notice, implied notice of the condition from lapse of time not being sufficient, as the failure to so notice the condition by the timber-man would be merely his negligence, which, under authorities cited, it is stated could not be made the basis of a liability (p. 632). The fact, however, of a failure to give such actual notice is made to distinguish the case from that of C. & E. I. R. R. Co. v. Rung, 104 Ill. 641, wherein the com. pany was held liable for the condition of an engine by reason of the fireman of the round house having notice. In Sangamon Coal Mining Co. v. Wiggerhaus, 122 Ill. 285, on this point of notice, it is said : “ It is insisted that notice to a co-servant of appellee is not notice to the common employer. We do not think it important to discuss the doctrine indicated by the objection urged. It is, we think, sufficient to say that when a duty is imposed upon and intrusted to an agent by a corporation, notice to such agent of matters falling within his line of duty, is notice to the corporation.” Mow, in this case in hand, the fourth and fifth counts— more clearly in the fifth—do allege that defendant knew the roof, where plaintiff had to work, “ was unsafe and dangerous and hable to fall upon the plaintiff,” of which fact he was ignorant, and negligently left the said roof in that condition and failed to pull it down, whereby plaintiff, while in the exercise of due care, was injured by the roof falling on him. The appellant company knew of the condition of the roof by actual notice to the timberman, whose duty it was to examine and fix the roof, who was explicitly told by one of the miners, five or six hours before the accident, that this particular part of the roof was unsafe and liable to fall. This was competent evidence under the fourth and fifth counts. The timberman did not take the witness stand and deny the fact of such notice. Appellee was ignorant of the condition until a moment before the accident, when he attempted to get out of the way and was caught, while in the exercise of due care. These facts, under the authority of "Wiggerhaus, sivpra, make out a case of common law negligence, and create a liability. It is said, however, the declaration does not aver the duty of said timberman, and that the fourth count does not aver that appellee did not know the dangerous condition of the roof. It was not necessary to aver these facts, which were evidentiary in their nature. It is averred appellant knew of the condition of the roof before the accident. It was not necessaiy to aver the evidentiary facts showing how it knew. The C. C. Ry. Co. v. Jennings, 157 Ill. 274. It is averred in the fourth count appellee was in the exercise of due care on Ms part. It was not, therefore, necessary to aver his knowledge or want of knowledge, or other facts, evidentiary, in support of that averment. This is expressly held in Con. Coal Co. v. Wambacher, 134 Ill., at p. 63. Besides, if the fifth count was good, that is sufficient. See. 57, Chap. 110, Practice Act. The effect of the instructions to ignore each count was to confine the evidence to the good count or counts. Anderson v. Sample, 2 G-ilm. 455. It is said there is no proof of the averment in these counts that appellant undertook to secure the roof, etc. The Scheller case holds, as above quoted, that the appointment of a timberman relieves the miners of that duty, thereby impliedly holding in such case, on notice, it became the duty of the company, through its agent appointed for that purpose. There was full proof as to his duty in such matters, on notice being given. Counsel are in error in the position that this injury, under the proof, was one of the hazards of the service. A failure to perform an assumed duty, by which an injury results to one in the exercise of due care, creates a liability at common law. It is an ordinary hazard if an injury occurs where there is no such breach of duty, as if, without notice of the condition of the roof and appointment of a timber-man to secure it on notice, the roof should fall and cause an injury. Complaint is made that counsel for appellee was permitted to comment on the fact the timberman was not placed on the stand to testify as to notice to him of the condition of the roof, which fact of notice has been proven by two witnesses by the plaintiff. We do not understand this was error. The fabrication, suppression or withholding of evidence is properly the subject of inference. Winchell v. Edwards, 57 Ill. 41; I. M. Fire Ins. Co. v. Malloy, 50 Ill. 419; P., Ft. W. & C. Ry. Co. v. Callaghan, 50 Ill. App. 677. Objection is made to an instruction given for plaintiff that permitted the jury to allow the necessary and reasonable expenses in being cured. Counsel says: “There was no evidence that plaintiff has been to any expense whatever.” The physician testified such services rendered were reasonably worth $é00. The services were not paid, but there being a liability, the jury could consider them as paid. Dixon v. Bell, 1 Starkie’s R. 387, cited in City of Chicago v. Honey, 10 Ill. App. 538. The objection to the other instruction given, that it conflicted with the law as laid down in the Young and Scheller cases, supra, is not well taken. It was to the effect that defendant was required to use ordinary care and prudence to furnish plaintiff a reasonably safe place to work. This is in express accord with the Scheller case and other authorities cited. Appellant’s counsel makes no use of the rules of the company in his argument, and therefore we will give them no attention. What has been said indicates there could not have been a judgment entered for the defendant on the special findings. The judgment is affirmed.