Bell v. Toluca Coal Co.

• Decision Date: 20 April 1916
• Docket Number: No. 10612.,10612.
• Citation: 112 N.E. 311,272 Ill. 576
• Parties: BELL v. TOLUCA COAL CO.
• Court: Illinois Supreme Court

272 Ill. 576

112 N.E. 311

BELL

v.TOLUCA COAL CO.

No. 10612.

Supreme Court of Illinois.

April 20, 1916.

Appeal from Circuit Court, Marshall County; John M. Niehaus, Judge.

Action by Edward Bell against the Toluca Coal Company. Judgment for the plaintiff, and defendant appeals. Affirmed.Boys, Osborn & Griggs, of Streator, for appellant.

Frank J. Quinn and Shelton F. McGrath, both of Peoria, for appellee.

CARTER, J.

June 23, 1913, appellee was injured while in the employ of the appellant corporation as a mule driver, engaged in hauling coal cars in and about its mine. Some of the counts in the declaration were based upon the Workmen's Compensation Act of 1911 (Laws 1911, p. 315). The trial court held this act unconstitutional on the ground that it had not been legally passed by the Legislature, and the trial then proceeded without reference to said act. The jury found for appellee, and assessed his damages at $3,951, and judgment was entered on the verdict. The case having been appealed to the Appellate Court, the appellee assigned cross-errors raising the question as to whether the ruling of the trial court was correct in holding the said act unconstitutional. Thereupon the cause was transferred to this court before any decisions of this court holding this act constitutional were published. Since then, however, this court has decided the act constitutional as to the method of its passage by the Legislature. Frey v. Kerens-Donnewald Coal Co., 271 Ill. 121, 110 N. E. 824;Dragovich v. Iroquois Iron Co., 269 Ill. 478, 109 N. E. 999;Devine v. Delano, 272 Ill. 166, 111 N. E. 742.

The appellant's mine is located at Toluca, in Marshall county. The entries of the mine radiate from the shaft over a mile in all directions. The coal is hauled by mules from where it is being mined for a quarter to a half mile, and then conveyed to the foot of the shaft by electric motors and lifted by steam power to the surface. The entries are named by the direction they take. Appellee's work was in the fourth right entry off of the second southeast entry; this latter leading to the shaft. The vein of coal is about 3 feet thick. The overlying rock is taken out for a sufficient height to make a passage for the mules. As the coal is mined the spaces left are filled in with rock or stone taken from the roof and elsewhere, which is piled in such a way as to make solid sides for the entry. The contour of the floor of the passageways or entries is not uniform, some parts being rather steep, and other parts practically level. The fourth right entry is for the most part level; the steepest grade not being over 3 feet in 100. This grade, however, was sufficient to require the spragging of cars at certain points as the loaded cars were taken out. The distance between the rails and the roof varies, but is usually from 5 to 6 feet. The distance between the side walls averages about 8 feet. The rails of the track are 3 feet apart, leaving about 2 1/2 feet between each rail and its nearest wall. The rocks used in walling up the sides of the entries are not uniform in size; the largest being 1 1/2 feet long and from 8 to 10 inches wide. The cars were 7 feet long, 2 1/2 feet high from the rails to the top of the box, and overhung the rails about 6 inches on each side. Opening into this fourth right entry were several rooms. Room 4 on the left-hand side was about 450 feet from the junction of this entry with the second southeast entry. Room 5 was on the same side and about 60 feet away. In this entry were several slight curves, none of which were over 10 degrees in a distance of 25 feet, and there was a curve near these two rooms which turned to the right at room 4. From where the coal was mined to these rooms there was a grade, which ended at room 4. From that point on to the southeast entry the grade was up. The testimony on the part of appellee was to the effect that near the curve at rooms 4 and 5, on the left side, on which the mule driver sits, the side of the entry was from a foot to two feet from the rail, and up towards the roof of the entry the side walls left a narrower space between them; that at one place in the upper part of the left-hand side of the entry a rock projected, so that it was necessary for a driver riding on the car to lower his head in going around this curve under it; that the highest point of the roof at this point was about 5 1/2 feet. There was some testimony on the part of appellee to the effect that this condition of the entry had been reported to the mine manager or assistant mine manager a month or more before the accident. The record shows that some of the roof had fallen and had been cleared away, but the testimony of appellee was that there was one projecting rock remaining. There was no sign marking any place of danger near said rooms 4 and 5. On the contrary, the inspection report of the mine examiner for that portion of the mine indicated that it was ‘O. K.’ The man who laid the track at this curve testified that he did not have a railbender with which to make the rails join properly for a curve, and that the straight rails coming together made a kind of jog. These rails had been laid some time before the accident, but had remained in the same condition up to that time. This same witness testified that the projecting rock came half way across and over the track, being thicker at the side, and narrowing as it extended toward the center of the track; that it had been in that same position for two months before the accident; that the distance from the center of the arch of the roof to the rail was about 6 feet, the clearance under the rock perpendicular to the right rail was about 4 feet, and the distance from the right-hand rail to the side was 14 inches; that the curve was about 20 feet from room 4. Some of appellant's witnesses testified that there was no projecting rock, but one of its witnesses testified he had seen it there. There was also a conflict in the testimony as to the distance between the coal car and the side of the entry and the distance between the rail and the roof on the side the driver sat; also as to whether the condition of the rails at the curve was safe. The testimony on behalf of appellant was to the effect that there was no dangerous condition at this point that had ever been reported.

On the day of the accident appellee started with a loaded car about 1:15 p. m. from some point above room 5. He had spragged the right front wheel. He was sitting on the left-hand side of the car, driving a mule. Where he sat the coal did not come above the body of the car. On the other parts of the car the coal was piled 18 inches above the top. Another man rode on the rear of the car. The accident occurred 4 or 5 feet above the curve, as the car was going out toward the second southeast entry. Appellee testified that the day of the accident was the first time he had been instructed to drive a mule in this entry for a full day, but that he had made trips there previously. On this trip, some distance above the point of the accident, he noticed his car was going too fast. He flashed his light on the curve, and testified that he thought the rate of speed was such that the car would either jump the track or run into the side of the entry, and that he started to get off the car at the front end to slow it or steady it over that point; that he had one foot on the bumper in front and the other foot pitched forward and attempted to get off. His hands were on the front end of the car, and he stepped forward, and as he raised himself was struck on the head and fell in front of the car and rolled around, and then lost consciousness. When he came to he was lying close to the left-hand side, on the inside of the rail, and the car had gone by. Locamper, the man on the rear of the car, testified that at the time of the accident he saw appellee's light disappear, and that he got off the rear end, and then saw appellee being dragged between the car and the side of the entry; that witness then tried to stop the car, and it only ran a short distance; that the appellee was dragged about 20 feet, and was lying with his head to the inside; that the car had not run over him, but that he had rolled back on the track; that the witness then went for help. A witness for appellant reached the place of the accident about the same time. He testified that he found appellee about 20 feet from room 4, between the rails; that the loaded car was a little further along. There was no dispute as to how the accident happened, except that appellant contends there was no...