Chicago v. Coal Co. v. Moran

• Decision Date: 20 April 1904
• Citation: 210 Ill. 9,71 N.E. 38
• Court: Illinois Supreme Court
• Parties: CHICAGO, W. & V. COAL CO. v. MORAN.

210 Ill. 9

71 N.E. 38

CHICAGO, W. & V. COAL CO.

v.MORAN. ^*

Supreme Court of Illinois.

April 20, 1904.

Appeal from Appellate Court, Second District.

Action by Thomas Moran, by Patrick Moran as his next friend, against the Chicago, Wilmington & Vermilion Coal Company. From a judgment of the Appellate Court (110 Ill. App. 664) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Fred T. Beers (Mastin & Moss, of counsel), for appellant.

Duncan, Doyle & O'Conor, for appellee.

CARTWRIGHT, J.

On January 26, 1901, the appellee, Thomas Moran, a boy 16 years of age, was working with his father, Patrick Moran, in a coal mine of the appellant, the Chicago,Wilmington & Vermilion Coal Company, at Seatonville, Ill. Appellant paid Patrick Moran by the ton for the coal mined by himself and his minor son, the appellee. They worked in room 77, and their method was to undercut or take out 6 inches of clay under the vein of coal, which was about 3 feet and 6 inches thick. The full width of the room was 42 feet, and after removal of the coal it was about 4 feet high. They also took down the ledge of rock, 2 feet thick and 9 feet wide, above the coal, which was the width of the entry behind the room, and they used the rock to build the walls on either side of the entryway, so that the entry was 6 feet high. In this way the room advanced in distance from the shaft about 3 feet each day and the entryway was correspondingly lengthened. The entryway was in the center of the 42-foot room. Tracks were laid in the entry, and when a car was filled the driver would take it out and put in an empty car. Some time previously props had been furnished the appellee and his father to hold up the roof over the room, and were placed in the entry near the coal; but the company men who attended to the passageway at night, repaired tracks, and did other work for the company, found them in the way, and carried them back into the entry, and laid them along the track. Appellee and his father needing props to support the roof, appellee went along the entry to the place where props furnished them had been put, and sawed a prop, and then began sawing a cap. He had laid the cap across the track, and was on his knees sawing it, when a rock fell from the roof upon him, seriously and permanently injuring him. He brought this suit, by his father as next friend, to recover damages for his injury.

There were five counts in the declaration, the first three of which charged the defendant with negligently allowing the roof of the entryway to be and remain in a dangerous and unsafe condition. The fourth charged that defendant knowingly and willfully furnished props, caps, and timbers to be used by plaintiff in an unsafe and dangerous place. The fifth charged defendant with willfully and negligently omitting the duties of inspection by a mine examiner, provided by statute. There was a plea of the general issue, and a plea that plaintiff was not in the employ of the defendant when injured. Upon a trial the defendant was found guilty, and the plaintiff's damages were assessed at $5,000. Judgment was entered on the verdict, and was affirmed by the Appellate Court for the Second District. The assignment of errors covers the refusal of the court to admit evidence offered by the defendant, the giving of instructions on the part of the plaintiff, the modification of some instructions and the refusal of others submitted by the defendant, and the overruling of defendant's motion in arrest of judgment.

On the trial defendant examined James Cherry as a witness, and he testified that he was the person whose name appeared as one of the signers of an agreement of which the pamphlet was a copy, and that he signed such agreement. The defendant then offered in evidence certain articles of the pamphlet, which purported to be a copy of an agreement signed by various persons on behalf of the coal mine operators and other persons on behalf of the United Mine Workers. The material article offered related to the duty of a miner to notify that suitable props and caps were needed, and not to continue work until they were furnished. The evidence tended to prove that the plaintiff and his father were working in accordance with an agreement between the Operators' Association and the United Mine Workers. They were members of the United Mine Workers of Illinois, and plaintiff belonged to the local organization at Seatonville, where the mine was. The evidence was objected to, because not the best. No foundation was laid for the introduction of the alleged copy, and the absence of the original was not accounted for. Section 18 of the act in regard to evidence and depositions (Starr & C. Ann. St. 1896, c. 51, par. 18), which counsel insist authorizes the introduction of a copy, relates only to papers, entries, and records mentioned in the previous sections, and does not authorize the introduction of copies of contracts between parties. The ruling was right, and the evidence would have availed nothing to the defendant, if it had been admitted. Props and caps had been furnished for the use of the plaintiff and his father in such place as the defendant saw fit to deposit them for that use, and the same witness, Cherry, who was superintendent of the mine, testified that, if props were furnished as these were, the plaintiff would have a right, as a matter of course, to go and get them. In fact, that was never controverted at the trial. The only dispute was whether plaintiff had a right to stop in the entry to saw them.

The same witness was asked if there was any service or duty of a coal miner to be performed in the roadway or entryway, and an objection was sustained. The witness had been in the business of coal mining for 50 years, and the question called for an answer as to a matter of fact which would have been proper for the jury to know. The witness, however, testified that the entries and roadways were for the miners to travel to and from their work and for transportation of coal and empty cars, and there was no evidence or claim that they were intended primarily for work. We therefore think that the ruling did no harm. The reason offered by plaintiff for sawing the prop and cap in the entryway was that there was plenty of height and space there, while in the room at the face of the coal there was not sufficient height.

There was also evidence that the pit boss assured the plaintiff the roof was safe, and evidence that the entryway was the only suitable place for preparing the props and caps. The evidence for plaintiff was that his father called the attention of the pit boss to the roof about 10 days before the accident, and the pit boss said he would send men to fix it, and told him to go ahead and work, that he...