Emerling v. Spring Valley Coal Co.

Mr. Justice Dibell delivered the opinion of the court. It is alleged that the court erred in admitting evidence of the condition of the roadway and walls and roof for a distance of three hundred and fifty feet inward from the principal doorway and in allowing that condition to be shown for a period of about six months before the accident. From the foregoing statement it will be seen that while the injury was alleged to have occurred about forty-five yards inward from the principal doorway, yet the improper conditions were alleged to have existed from a point about twenty feet inward from said doorway to a point about two hundred yards or six hundred feet inward therefrom, so that the space covered by the proof was included in the charge in the declaration. The fact that said conditions existed for some considerable distance back and that those conditions had existed for several months before the injury tended to show that the conduct of appellant in maintaining those conditions was wilful. Taylor Coal Co. v. Dawes, 220 Ill. 145; Robertson v. Donk Bros. Coal Co., 238 Ill. 344. The existence of obstructions for some distance back, which made it necessary for the driver to ride low with his body in a cramped position in order to escape the obstructions, aided in showing how the injury actually occurred. Complaint is made of the introduction of testimony that the entry way was dusty. The first additional count was devoted to that subject and appellant joined issue thereon. Appellant contends that that count did not state a cause of action, and the court at its request directed the jury to disregard that count, but the count was a matter in issue when the evidence was introduced and the admission of that evidence was therefore competent. Complaint is made that on cross examination appellant was not permitted to ask a witness if it was not a fact that there was no place in that entry which was less than five feet wide, and, in another question, if it was not true that there were no timbers less than five feet high. An examination of the record discloses more fully than does the abstract that appellant had asked - this witness each of these questions, and had received a positive answer to each, and that the question objected to was a mere repetition and was objected to on that ground. The court did not err in sustaining the objection. Zetsche v. C. P. & St. L. Ry. Co., 238 Ill. 240. We have examined the other criticisms made upon the rulings of the court upon the evidence and do not find any reversible error in those rulings. It is argued that the court erred in refusing to take the case from the jury. There was evidence to support each of the first three counts of the declaration and it was the duty of the court to submit that evidence to the jury. The fourth count was based upon the provision of the mining law requiring certain passage ways to be five feet high and five feet wide. It is argued that this was not such a passage way as the statute contemplates, and that there could be no recovery thereunder, and that the court therefore erred in permitting plaintiff to introduce evidence tending to show that this entry was not five feet high and five feet wide. The court did instruct the jury to disregard this count of the declaration, and therefore decided this contention in favor of appellant. Appellant contends that because the court gave instuetions for appellee that if the plaintiff was injured by a wilful violation of law by appellant as charged in the deelararation, then they should find appellant guilty, this nullified the instruction to disregard the fourth count and first additional count. We are of opinion that where an instruction directs the jury to disregard a particular count of the declaration, a reference in general terms to the declaration in other instructions not only intends a reference to that part of the declaration which the jury has not been instructed to disregard, but that it would be so understood by the jury. West Chicago St. R. R. Co. v. Buckley, 200 Ill. 260; Sandy v. Lake St. Elev. R. R. Co., 235 Ill. 194. This conclusion answers several other objections made to instructions given for appellee and to the action of the court relating to proof introduced under the counts which the court afterwards instructed the jury to disregard. Instruction 4b requested by defendant, which the court refused, was in the nature of an argument. Some of the instructions requested by appellant and refused were designed to submit to the jury the question whether appellant acted in good faith. It was held in Eldorado Coal Co. v. Swan, 227 Ill. 586, that the question of the existence or non-existence of good faith on the part of the operator of a coal mine is not involved in a suit brought for the wilful violation of the statute. These instructions were therefore properly refused. But the court, by instruction No. 10 given at the request of appellant, laid down the law in harmony with its contention, and it has nothing of which to complain upon that subject. Appellant complains that the court refused to instruct the jury at its request that the mere fact that plaintiff was injured in that entry way did not prove that dangerous conditions existed there. The injury to plaintiff at that place was one of the facts which tended to show the existence of dangerous conditions at the place of injury, and the court properly refused to separate the several items of proof tending to show dangerous conditions and tell the jury that one of these facts taken separately did not prove the case. As the second additional count, charging common law negligence, was dismissed at the end of plaintiff’s, case, and the liability of appellant under the other counts did not depend upon any question of negligence, the court properly refused to instruct the jury upon the question of negligence. Several of the refused instructions were sufficiently covered by instructions given at appellant’s request. It is contended that the evidence does not support the verdict. The evidence was conflicting. That introduced by appellee tended to establish the first three counts of the declaration. We do not feel authorized to disturb the conclusion of the jury, approved by the trial judge. Appellee has assigned cross errors, but does not request us to act upon them unless, for some good reason, we reverse the case. We do not find any reversible error in the matters argued by appellant. The judgment is therefore affirmed. !'Affirmed.