Hughes v. Eldorado Coal & Mining Co.

Mr. Justice McBride delivered the opinion of the court. 4. Pleading, § 56*—when count preserved as part of declaration after direction of verdict. Where the evidence as to a count is stricken and a verdict directed as to the count, the count is not thereby stricken but remains part of the declaration for reference purposes and may furnish a sufficient basis for additional counts setting forth the cause of action in a manner more accurate and legal than in the disapproved count. 5. Workmen’s Compensation Act, § 12*—when declaration in action for death sufficient. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, declaration examined and held as a whole to state a complete cause of action. 6. Workmen’s Compensation Act, § 12*—when declaration sustained by one good count. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, where defendant pleaded the statute of limitations to three counts not alleging that the employer had elected not to provide and pay compensation as provided by the statute, a demurrer to the plea held not erroneously sustained where a count to which the statute was not pleaded sufficiently alleged such election. 7. Workmen’s Compensation Act—what is liability of employer under act. An employer operating under the Workmen’s Compensation Act is liable for all injuries sustained by his employees acting within the scope of their employment, regardless of questions of negligence, proximate cause or accident. 8. Workmen’s Compensation Act, § 2*—when presumed that employer decided not to come under Workmen’s Compensation Act. In an action at common law to recover for personal injuries sustained by an employee since the enactment of the Workmen’s Compensation Act of 1913, it will be assumed as a fact that defendant had elected not to pay compensation in accordance with the act, where counsel conceded in argument that defendant was not operating under the act at the time of the injury and never had been so operating, although there was no evidence of such fact. 9. Workmen’s Compensation Act, § 2*—when action of counsel constitutes declaration that employer not operating under statute. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, the action of counsel for defendant in offering evidence tending to show that negligence of defendant was not the proximate cause of the injury sought to be recovered for is equivalent to a declaration that defendant was not operating under the statute. 10. Trial, § 34*—when courts reluctant to sustain objections. Courts are reluctant to sustain objections where a party has lost no rights by reason of the matters objected to and where nothing is to be gained by sustaining the objections. 11. Evidence, § 206*—what constitutes a declaration against interest of deceased person. In an action to recover for personal injuries resulting in the death of plaintiff’s intestate, a miner, since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the act, and where plaintiff’s injuries were the result of an explosion occurring immediately after deceased fired certain shots, and where defendant’s theory of the accident was that the shots were fired with the air, causing the powder smoke or carbon monoxid to be carried from one shot to another, causing the explosion, a statement of deceased’s buddy tending to confirm defendant’s theory is a statement against the interest of the declarant, it appearing that declarant was injured by the same explosion. 12. Evidence, § 205*—when declarations of deceased person admissible. Declarations made by a deceased person against his interest are competent. 13. Evidence, § 143*—what constitutes secondary evidence. Declarations made by a deceased person against his interest, when competent, are secondary evidence. 14. Evidence, § 206*-—what constitute declarations by deceased person against interest. Declarations by a deceased person against his interest constitute a class of evidence embracing not only entries in books but all other declarations or statements of fact, verbal or written, whether made at the time of the fact declared or at a subsequent date. 15. Evidence, § 205*—when declarations of deceased person competent. In order to render the declarations of a deceased person competent it must appear that the declarant is dead, and that while alive he possessed competent knowledge of the facts or that it was his duty to have such knowledge, and that the declarations sought to be proved were at variance with his interest. 16. Evidence, § 464*—how weight and value of declarations against interest of deceased person determined. The weight and value as evidence of declarations of a deceased person against his interest is to be determined by other evidence in the case. 17. Evidence, § 204*—when declarations against interest of deceased person competent. Declarations by a deceased person against Ms interest are competent to prove collateral or independent facts embodied in such declarations. 18. Evidence, § 204*—when declarations against interest of deceased person competent. Declarations by a deceased person against his interest are competent in a suit between strangers. 19. Evidence, § 177*—competency of declarations by third party. Declarations by a third party are not generally competent. 20. Evidence, § 204*—when declarations of deceased person competent. In an action at common law to recover for injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, and where defendant’s theory of the explosion causing the injuries was that deceased fired shots in the air, causing the powder smoke ór carbon monoxid to be carried from one shot to another, resulting in the explosion, the exclusion of a declaration by deceased’s buddy, also injured by the explosion, tending to confirm defendant’s theory held erroneous, it appearing that the declarant was dead, and that the statement was against interest. 21. Instructions, § 28*—when giving of erroneous oral instruction not cured. An erroneous oral instruction involving the statement of the opinion of the trial judge as to the sufficiency of the evidence to prove a contested fact is not cured by directing the jury to’ disregard such instruction. 22. Instructions, § 28*—when no right to instruct orally. An oral instruction to a jury is in violation of section 73 of the Practice Act (J. & A. j[ 8610), providing that no judge shall instruct the jury in a civil or criminal case unless such instructions are reduced to writing. , 23. Appeal and error, § 590*—when exception to instruction timely as basis for error. An assignment of error in instructions is warranted where the exception to the instruction objected to as erroneous was taken immediately after the instruction was given. . 24. Instructions, § 71*—when instruction assuming disputed facts erroneous. In an action at common law to recover for personal injuries resulting in the death of plaintiff’s intestate, a miner, sustained since the enactment of the Workmen’s' Compensation Act of 1913, where the employer elected not to provide and pay compensation as provided by the statute, such injuries being caused by an explosion in defendant’s mine where deceased was employed as a shot firer, an instruction assuming that a dangerous condition existed in the mine at the time of the accident held erroneous where the facts assumed were contested, and where an erroneous oral instruction had previously been given on the same count. 25. Mines and minerals, § 191*—when instruction as to duty of operator to sprinkle and clean roadways erroneous as being too broad. In an action to recover for injuries sustained resulting in the death of plaintiff’s intestate, a miner, since the enactment of the Workmen’s Compensation Act of 1913, where the employer had elected not to provide and pay compensation as provided by the statute, where two counts in the declaration alleged “that the defendant wilfully failed and neglected to have the entries and roadways thoroughly sprinkled or cleaned,” an instruction to find defendant guilty if the jury found that defendant committed the wilful violation charged in such counts, held erroneous as being broader than clause m of section 14 of the Miners’ Act (J. & A. If 7488), providing that “the operator of such mine must have such roadways regularly and thoroughly sprayed, sprinkled or cleaned." 26. Mines and minerals, § 41*—what constitutes wilfulness within Mining Act. To constitute wilfulness within the meaning of the Miners’ Act (J. & A. j[ 7475 et seq.), the act charged to be wilful must be an act prohibited by the statute. 27. Appeal and error, § 1391*—when evidence not discussed. Where a judgment is reversed for errors of law, the Appellate Court is not warranted in expressing views on the evidence.