Carterville Coal Co. v. Abbott

• Decision Date: 16 October 1899
• Citation: 181 Ill. 495,55 N.E. 131
• Parties: CARTERVILLE COAL CO. v. ABBOTT.
• Court: Illinois Supreme Court

181 Ill. 495

55 N.E. 131

CARTERVILLE COAL CO.

v.ABBOTT.

Supreme Court of Illinois.

Oct. 16, 1899.

Appeal from appellate court, Fourth district.

Action by A. Morton Abbott against the Carterville Coal Company. From a judgment for plaintiff, affirmed by the appellate court (81 Ill. App. 279), defendant appeals. Affirmed.Clemens & Warder, for appellant.

Duncan & Rhea, for appellee.

Plaintiff received the injury sued for in this case on May 13, 1897, at which time he was in the employ of the defendant, a coal-mining corporation, as a blacksmith, and, while descending the air or escapement shaft by means of a ladder, fell from the last platform to the bottom, a distance of about 11 feet. The two counts of the declaration charge the defendant, in effect, with a willful failure to construct or maintain an escapement shaft in the manner provided for by section 3 of chapter 93 of the Revised Statutes of Illinois. The second count sets out that section in totidem verbis, and avers that the coal mine was opened in 1890, after the passage of the act in force July 1, 1889; that there was provided and maintained, in addition to the main hoisting shaft, a separate escapement shaft from the mine to the surface of the ground, which was used by the defendant as a second means of ingress and egress by means of a system of ladders and platforms, which ladders and platforms were not partitioned off from the main airway into said mine, and did not have substantial hand rails or safe means of any kind to protect the lives and persons of the employés of said mine while using the said ladders and platforms; that the defendant suffered dirt to accumulate on the last one of said platforms descending into the mine, making the same to appear to one descending therein as the bottom or ground floor of said mine, but which platform was twelve feet from the bottom of said mine; that the plaintiff was required to enter said mine for the purpose of fixing and repairing a pump therein, and while so descending said escapement shaft, in the exercise of due care and caution, fell and sustained numerous injuries. A verdict and judgment for $3,500 being affirmed in the appellate court, this appeal is prosecuted.

It was not contended but that the defendant failed to provide an escapement shaft as required by section 3 of chapter 93 of the act in force July 1, 1889, after the passage of which this mine was opened. The proof showed that about 125 men were employed in the mine at the time of the accident, and that the escapement shaft had been in use for six or seven years prior to the accident. The appellant contends, however, that there is no proof in the record showing for what length of time preceding May 13, 1897, the date of the accident, a greater number of men than 6 were employed, and that the statute does not apply to a mine which has not, for a year preceding, been operating with a force of 6 men or more. The proof showed that at times over 100 men had been employed within the mine, and the jury would have been warranted, from that fact, and the fact that the mining company had in fact constructed an escapement shaft, in concluding that the number of men employed by it brought it within the requirements of the statute. Independently of this, however, the provision of the statute is, as to mines opened after the passage of this act, that one year's time shall be allowed for all shafts 200 feet in depth or less, time to be reckoned in all cases from the date on which coal is first hoisted from the original shaft for sale or use; making it the duty of the inspector to see that all the escapement shafts are begun in time to secure their completion within the time specified.

No peremptory instructions were asked, and the only other questions for consideration by this court are those based upon the giving and refusal of instructions. The theory of appellant's defense on the trial of this case was that the plaintiff was not in the exercise of due care and caution for his own safety at the time of the accident. This was alleged in the declaration, and the plea of the general issue traversed that allegation. Witnesses for the defendant testified that the plaintiff admitted, shortly after the accident, that it was partially his own fault,-that ‘it was my own foolishness.’ Defendant sought to prove by the engineer that he asked the plaintiff and his helper if they wished to be let down by means of the cage in the mine shaft; that he had steam up, and was prepared to let them down in that manner; that plaintiff made no answer, and, getting no satisfaction from him, he left; that as the plaintiff's duties required him to go into the mine for different purposes, such as shoeing the mules, fixing the machinery, etc., he at all times had the right to command the use of the cage for purposes of ascent or descent. Among the instructions given for the plaintiff to which defendant excepted were the following: ‘(7) That if plaintiff did say he fell and was injured as a result, partly, of his own neglect, yet if the jury believe from a preponderance of the evidence that the plaintiff's injury was occasioned by reason of the willful failure of defendant to partition off the stairway from the main airway of the escapement shaft, and provide substantial hand rails and platforms for the same, and that such injury would not have occurred but for such willful failure, then the verdict should be for the plaintiff.’‘(4) That if the jury believe from a preponderance of the evidence that on the 13th of May, 1897, defendant was the operator of said coal mine worked by shaft, which had been in operation for more than a year for hoisting coal for sale and use, and there were more than six men employed in such mine, and an escapement shaft had been constructed in addition to the hoisting shaft, and said mine was less than one hundred feet in depth, but defendant willfully failed to provide such escapement shaft with stairways partitioned off from the main airway, having substantial hand rails and platforms, and by reason of such willful failure the plaintiff, while in the employ of defendant in said mine, fell to the bottom of said shaft and was injured, the verdict should be for the plaintiff.’ All the instructions asked by the defendant were refused, to which it excepted. They were as follows: ‘(1) The jury are instructed that an employer is not required to exercise any greater degree of care for the preservation and safety of his employé than the employé exercises on his own behalf, and that all risk knowingly assumed by the employé is incident to the service that he enters, and is supposed by him to be voluntarily assumed, and to form a portion of the consideration for the wages which he...