Catlett v. Young

• Decision Date: 02 November 1892
• Citation: 32 N.E. 447,143 Ill. 74
• Parties: CATLETT et al. v. YOUNG.
• Court: Illinois Supreme Court

143 Ill. 74

32 N.E. 447

CATLETT et al.

v.YOUNG.¹

Supreme Court of Illinois.

Nov. 2, 1892.

Appeal from appellate court, third district.

Action on the case by Laura Young against Hiram B. Catlett and Herald Catlett. Plaintiff obtained judgment, which was affirmed by the appellate court, (38 Ill. App. 198,) and defendants appeal. Affirmed.

W. R. Lawrence, for appellants.

Blackburn & Rearick and J. B. Mann, for appellee.

BAKER, J.

Laura Young, appellee, prosecuted this action on the case against Hiram B. Catlett and Herald Catlett, appellants, to recover damages for injuries sustained by her by reason of the death of her husband, caused by his falling down the shaft of a coal mine, the top and entrance to which, as she alleged, said appellants willfully failed to securely fence by gates properly covering and protecting said shaft and the entrance thereto. She recovered a verdict and judgment in the trial court for $2,000 damages, and the judgment was affirmed in the appellate court.

The statutory provisions upon which this action is based are found in sections 8 and 14 of ‘An act providing for the health and safety of persons employed in coal mines,’ approved May 28, 1879, and in force July 1, 1879, (Laws 1879, pp. 207, 210; Rev. St. 1891, c. 93.) In said section 8 it is provided: ‘The top of each and every shaft, and the entrance to each and every intermediate working vein, shall be securely fenced by gates properly covering and protecting such shaft and entrance thereto.’ And said section 14 reads as follows: ‘For any injury to person or property, occasioned by any willful violations of this act of willful failure to comply with any of its provisions, a right of action shall accure to the party injured for any direct damages sustained thereby; and, in case of loss of life by reason of such willful violation or willful failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children, or any other person or persons who were before such loss of life dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.’

The court, at the instance of appellee, gave to the jury the following instruction: ‘The law makes it the duty of every operator and owner of a coal mine to securely fence the top of the shaft by gates properly protecting the shaft and entry thereto, and if such operator fails willfully to so fence the shaft, and by reason of such failure a person employed about the mine is killed, the owner or operator is liable to the widow of the person so killed for damages not to exceed the sum of $5,000.’ And the court refused to give the two following instructions, which were submitted by appellant, to wit: ‘Although you may believe from the preponderance of the evidence that defendants failed to fence the entrance to the shaft in such a manner as to securely protect the workmen from falling into it, yet, if you believe from a like weight of evidence that deceased had charge and control of the opening and closing of the entrance, and while so at work willfully left it open, and knew it was open, and while so opened, and while so knowing it, stepped upon the car which was used for closing it, and recklessly exposed himself to the danger of falling into the shaft, and while so exposed, and while so at work thereon, he fell into the shaft, the plaintiff cannot recover.’ ‘In order for plaintiff to recover it must appear from the preponderance of the testimony that her husband, at the time he fell into the shaft, was using the care that a man or ordinary prudence should have used under the circumstances; and if it should appear from the testimony that at the time he so fell he had charge of the car, and could, with the use of ordinary care, have placed it over the mouth of the shaft, but failed so to do, and by reason of such failure he fell from it into the shaft, then, and in such case, the plaintff cannot recover.’

The question raised by the rulings of the trial court upon said instructions, and the principal question at issue between the parties to this suit, is whether or not, in a suit prosecuted under section 14, above quoted, for an injury to person or property or a loss of life, occasioned by a willful violation of any of the requirements of the act providing for the health and safety of persons employed in coal mines, or willful failure to comply with any of its provisions, it devolves upon the plaintiff to allege and prove the exercise of ordinary care on his part or on the part of the deceased, and whether or not contributory negligence on his part or on the part of the deceased will preclude a recovery. The provisions of the act of 1879 are very similar to those contained in the prior act providing for the health and safety of persons employed in coal mines, approved March 27, 1872, and in force July 1, 1872, (Rev. St. 1874, c. 93;) and section 14 of the present act is almost or quite literally the same as section 14 of the former act. In Mining Co. v. Roach, 68 Ill. 174, the suit was brought to recover damages for the death of one Roach, alleged to have been caused by the willful failure of the company to comply with the provision of section 8 of the act of 1872, which required that the top of each shaft shall be securely fenced by vertical or flat gates,...