Kleet v. Southern Illinois Coal & Coke Co.

Mr. Justice McBride delivered the opinion of the court. 7. Pleading, § 466*—when not presumed every essential fact alleged in declaration was proved. After verdict the intendment is that every essential fact alleged in the declaration, or fairly implied from its allegations, were established on the trial, but where the declaration does not show a good cause of action there is no room for intendment or presumption. 8. Master and servant, § 550*—when declaration at common law for personal injuries sufficient after verdict. In an action at common law to recover for injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, where the declaration alleged in general terms the election of defendant not to provide and pay compensation as provided by the statute, and where the evidence showed that defendant had performed the acts necessary to effectuate its election as required by the statute, held that the declaration was good after verdict although it nowhere alleged that defendant posted notice of its election as required by the statute. 9. Workmen’s Compensation Act, § 2*—how filing of notice with Industrial Board may he proved. Proof of the filing of a notice with the Industrial Board in compliance with the Workmen’s Compensation Act of 1913 is sufficiently made by proving a copy of the notice filed, certified by the secretary of the board and under its seal. 10. Evidence, § 122*—how contents of posted notice may he proved. The contents of an inscription on a wall or of a notice posted thereon may be proved by the testimony of those who read such inscription or notice. 11. Workmen’s Compensation Act, § 2*—how election not to come under act may he proved. In an action at common law to recover for personal injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, where the declaration alleged that defendant elected not to provide and pay compensation as provided by the apt, held competent to prove such election by a copy of the notice filed by defendant with the Industrial Board, certified by its secretary and under the seal of the board, and by the testimony of those who saw the notice posted as required by the statute and by a copy of the notice made by one who saw it. 12. Trial, § 213*—when instruction takes count from consideration of jury. Where a declaration contains several counts, one of which is not supported by evidence, an instruction that there could be no recovery under the unsupported count has the effect of taking such count away from the consideration of the jury. 13. Trial, § 213*—when refusal of instruction that there can he no recovery on unsupported count not reversible error. Where a declaration contains several counts, one of which is not supported by evidence, it is not reversible error to refuse an instruction that no recovery- can be had on the unsupported count although such refusal may be erroneous, defendant not being prejudiced thereby, since in such case the presumption is that if a verdict is found for plaintiff, it is based on the counts which are supported by evidence. 14. Trial, § 247*—when verdict on one sufficient count good. Where one sufficient count in a declaration is sustained by evidence the verdict is good. 15. Trial, § 247*—when verdict on one good and one poor count sustained. A verdict finding defendant guilty on two counts, one sufficient and the other insufficient, will not be reversed although the court gave an instruction authorizing recovery on the insufficient count. 16. Appeal and error, § 1563*—when refusal of instruction to disregard count not reversible error. In an action to recover for personal injuries sustained by a miner as the result of the alleged negligence of defendant’s assistant mine manager in frightening the mule which plaintiff was driving at the time of the accident, causing the mule to turn, slackening the tail chain on which plaintiff was standing, and throwing plaintiff under the car, where the declaration contained several counts, one of which alleged that defendant’s foreman struck the mule, which count was not supported by evidence, the refusal of an instruction that plaintiff could not recover under the unsupported count held not reversible error, although erroneous. 17. Instructions, § 11*—when meaning of terms need not be explained. In an action for personal injuries, the terms “proximate cause” and “accident” are not so technical as to make the failure to explain in instructions the meaning of the terms necessarily error. 18. Mines and minerals, § 191* -when instruction as to Knowledge of disposition of mule not erroneous. In an action to recover for injuries sustained by a miner as the result of the vicious disposition of a mule given him to drive, an instruction relating to defendant’s knowledge of the disposition of the mule examined and held not objectionable, it appearing that the instruction did not direct a verdict, and that defendant’s boss driver had notice of the disposition of such mule. 19. Master and servant—when plaintiff entitled to instruction as to effect of defendant’s failure to accept compensation act. In an action at common law to recover for personal injuries sustained by a servant since the enactment of the Workmen’s Compensation Act of 1913, where it appears that defendant elected not to provide and pay compensation as provided by the statute, plaintiff is entitled to an instruction advising the jury as to the defenses of which defendant was deprived by the statute as a result of its election. 20. Instructions, § 135*—when necessary that instruction he requested. A party desiring that the jury he instructed as to the evidence required to prove any disputed question of fact must ask for an instruction, and if he fails to do so cannot complain that none was given. 21. Instructions, § 154*—when requested instruction may he modified. It is not error to modify a requested instruction by making it more specific although the same general principle was covered by the instruction without the specific modification. 22. Instructions, § 151*—when may he refused. A party cannot complain of the refusal of instructions substantially given in other instructions. 23. ' Mines and minerals, § 180*—when question whether assistant mine manager frightened mule for jury. In an action for personal injury sustained by a miner as the result of the alleged negligence of defendant’s assistant mine manager in frightening the mule which plaintiff was driving at the time of the accident, the question whether the assistant manager did frighten the mule as alleged is a question of fact to be determined by the jury. 24. Mines and minerals, § 173*—when evidence sufficient to sustain verdict. In an action to recover for personal injuries sustained by a miner as a result of the alleged negligence of defendant’s mine manager in frightening the mule which plaintiff was driving at the time of the accident, causing the mule to turn, thereby slackening the tail chain on which plaintiff was standing, and throwing him under the car, a verdict for plaintiff held not manifestly against the weight of the evidence. 25. Appeal and error, § 1410*—when verdict sustained on appeal. On appeal it is the duty of the Appellate Court to sustain the verdict and judgment appealed from unless it can be said that such verdict and judgment are manifestly against the weight of the evidence.