Consol. Coal Co. v. Wombacher

• Decision Date: 22 April 1890
• Citation: 134 Ill. 57,24 N.E. 627
• Parties: CONSOLIDATED COAL CO. v. WOMBACHER.
• Court: Illinois Supreme Court

134 Ill. 57

24 N.E. 627

CONSOLIDATED COAL CO.

v.WOMBACHER.¹

Supreme Court of Illinois.

April 22, 1890.

Appeal from appellate court, fourth district.

Charles W. Thomas

, for appellant.

Turner & Holder and Frank Perrin, for appellee.

This was an action on the case by appellee against appellant. The declaration sets out that defendant, on the 2d day of February, 1888, at the village of Trenton, in St. Clair county, owned and operated a coal mine, from which it was mining coal; that it had engaged there certain employes to run mining-machines, and other employes to drill and blast coal after it had been mined by the machines, and other employes to load the coal into boxes to be transported to the bottom of the shaft to be hoisted to the surface, and other employes to drive mules attached to the said boxes, and other employes to build roads, drive and open entries, and set up props to prevent clods, dirt, coal, rock, or other overhanging material from falling; that defendant had also an employe called a ‘pit boss,’ who was the master and director of the other employes, having power to employ and discharge, and to control and direct, all the said other employes; that it was the duty of those running the mining-machines to mine coal, and the duty of the said blasters to drill and blast down the coal so mined, and of the loaders to load the said coal so mined and blasted upon boxes, and of the drivers to haul said coal to the pit bottom, and of the others to lay roads and set props to prevent the falling of clods, dirt, rock, and other material overhanging; that defendant had no props for the purpose of propping up said coal, clods, dirt, and rock; that plaintiff was employed by defendant as a loader, and it was his duty to load coal on boxes in the mine; that while he was so engaged there was overhanging him a large quantity of rock, which was not propped up; that while he was so engaged the said pit boss examined the said rock, and directed the plaintiff to continue his labor thereunder, and represented to plaintiff that the said labor under said rock was without danger, and that said rock would remain overhanging until plaintiff could complete the work directed by the pit boss to be done; that plaintiff thereupon continued said work, and while so engaged, and without any fault or negligence on his part, the rock fell and crushed him, and fractured his spine, and caused paralysis of his lower extremities, and otherwise permanently and incurably injured him, on account of which he has been compelled to lay out $500 for medical attendance, and has been deprived of the means of earning a living for himself and family; that the pit boss at the time knew it was dangerous to work under said rock, which he had examined, and knew the rock was liable to fall on plaintiff, and notwithstanding the said knowledge directed plaintiff to continue his labor there, and informed plaintiff that the said labor was then and there safe; that the said pit boss, well knowing the dangerous nature of said rock, and having full control of the employes whose duty it was to place props under said rock, neglected to order said props to be set, and, well knowing that said rock would fall and injure or kill plaintiff, falsely represented to plaintiff that said rock was solid, and, well knowing that said labor under said rock was dangerous, permitted and directed plaintiff to continue said labor, whereby, and by means of said neglect and knowledge and direction and of said failure and neglect of said pit boss, the plaintiff, without any fault on his part, was by the fall of said rock injured, to his damage of $5,000. Appellant pleaded the general issue. The jury returned a verdict in favor of appellee, assessing his damages at $2,500. Motion for new trial was made by appellant, and overruled by the court, and the court thereupon entered judgment upon the verdict of the jury. Appellant then moved in arrest of judgment, but this also was overruled; and appellant then took the case by appeal to the appellate court of the fourth district, and that court affirmed the judgment of the circuit court. The case is here by the appeal of the appellant from the last-named judgment.

SCHOLFIELD, J., ( after stating the facts as above.)

Since in this class of cases our jurisdiction is limited to the determination of questions of law, our consideration of appellant's argument must be confined to the questions: (1) Is the declaration sufficient to sustain the judgment? (2) Can we consider whether there is a variance between the allegations and the evidence? And (3) ought the court to have instructed the jury to find for the defendant? The other parts of that argument relate wholly to the effect and weight of the evidence, and ought therefore to have been presented to the appellate court in a petition for rehearing, where alone they would have such relevancy as would entitle them to consideration. The questions before us will be briefly considered in the order stated.

1. It is, among other things, sufficiently stated in the declaration that appellant is owner and operator of a coal mine, and has in its employ a pit boss, to whom it has given authority to direct and control the labors of those employed in its mine; that appellee was employed by appellant to labor in its mine under the direction and control of this pit boss, and was so laboring; that this pit boss, knowing that there was loose overhanging rock in the roofing of the mine, insufficiently braced to prevent its falling and doing great personal injury, falsely represented to appellee that there was no danger to be apprehended from overhanging rock, and directed him to work under such...