Consol. Coal Co. v. Gruber

• Decision Date: 20 December 1900
• Parties: CONSOLIDATED COAL CO. v. GRUBER.
• Court: Illinois Supreme Court

188 Ill. 584

59 N.E. 254

CONSOLIDATED COAL CO.

v.GRUBER.¹

Supreme Court of Illinois.

Dec. 20, 1900.

Appeal from appellate court, Fourth district. was true, is, at most, harmless error, friend, against the Consolidated Coal Company. From judgment of the appellate court (91 Ill. App. 15) affirming a judgment of the circuit court for plaintiff, defendant appeals. Affirmed.

Charles W. Thomas, for appellant.

Webb & Webb and Hamell & Borders, for appellee.

BOGGS, C. J.

The appellee recovered a judgment against the appellant company in an action on the case in the circuit court of St. Clair county in the sum of $6,000. This is an appeal from a judgment of the appellate court for the Fourth district, affirming that of the circuit court. The appellee had not arrived at legal age, and the suit was instituted by his father, William Gruber, as next friend. A bond to secure the costs was not filed, and the appellant moved the court to dismiss the cause because security for costs had not been given. A cross motion for leave to prosecute as a poor person was interposed, supported by satisfactory proof that said plaintiff and his next friend, and each of them, were insolvent, and unable to pay costs of suit, etc. The court allowed the cross motion, and such ruling is assigned as for error. In Railroad Co. v. Lane, 130 Ill. 116, 22 N. E. 513, the precise question was considered and determined adversely to the contention of appellant. It is insisted that the attention of the court was not called in that case to the ruling in the case of Railroad Co. v. Latimer, 128 Ill. 163, 21 N. E. 7, and it is urged the holdings in the two cases are in conflict. We think not. In the Latimer Case the action was begun by a next friend without having previously, or at the time of beginning the suit, filed a bond for costs, and the motion entered by the defendant was to dismiss the suit on the ground that, under the proper construction of the proviso to section 18 of chapter 64, entitled ‘Guardian and Ward’ (Hurd's Rev. St. 1899, p. 943), the filing of security for costs was a condition precedent to the right to institute the suit, and that the suit should be dismissed for failure to observe and perform this condition. A cross motion for leave to file a bond for costs was interposed, and it was ruled the filing of a bond was not a ‘prerequisite jurisdictional necessity,’ but that the suit might be prosecuted by filing in court a bond at any period in the proceedings, when ordered to do so by the court, and the cross motion was allowed. There is nothing said in the Latimer Case inconsistent with the view expressed in the Lane Case. In the Latimer Case the infant was able to give security, and not insolvent, while in the Lane Case, as in the case at bar, the infant plaintiff was insolvent, and unable to give security for costs. In the Lane Case we held that the said proviso to said section 18 of said chapter 64, and section 5 of chapter 33, entitled ‘Costs' (Hurd's Rev. St. 1899, p. 483), were to be regarded as in pari materia and construed together, and that infant plaintiffs, as well as adult plaintiffs, were entitled to avail themselves of the privilege of prosecuting actions in forma pauperis.

It is next complained that the court refused to instruct the jury, at the close of the testimony in the cause, to find the appellant company not guilty. This raises a question of law whether the evidence tended to show a cause of action under either of the counts of the declaration. Trial was had upon the fourth amended declaration, which contained two counts. Each of the counts charged that the appellee, while engaged as a ‘shoveler’ in one of appellant's mines, was seriously injured by a large quantity of coal which fell upon him. The first count charged that the injury was occasioned by the negligence of one William Hamilton, the ‘bottom man’ or assistant mine manager for the appellant company. The second count charged that the appellant company negligently failed and omitted to exercise reasonable care to provide and keep reasonably safe the place where appellee, as its employé, was directed to work, and that by reason thereof the appellee received the injury complained of; that appellee did not have knowledge of the dangerous condition of the place; and that the appellant company, by its agents, had such knowledge, and failed to warn the appellee.

As to the first count, the contention of counsel for the appellant is that it appeared as a matter of law, from undisputed facts appearing in evidence, that the relation of fellow servant existed between appellee and said Hamilton. Counsel for appellant concede that in this court it must be assumed that said Hamilton was assistant mine manager, and while discharging the duties of that position the relation of fellow servant did not exist between him and the appellee, but contend that at the moment of time of the commission by Hamilton of the alleged acts of negligence, whereby it is claimed the appellee received the injury in question, the said Hamilton was engaged in discharging the duties of another servant of the appellant company, who was, beyond dispute, a fellow servant of the appellee.

In appellant's mine, at the time in question, a machine moved by compressed air was employed in ‘undercutting’ the vein of coal. Two men were required to operate the machine,-one to run the machine, and the other to shovel away the débris. The same two men were expected to, and did, operate the machine during the day and two others during the night time. The appellee and one William Nagle were engaged in operating the machine during the daytime, Nagle having charge of the machine, and appellee performing the duties of shoveler. On the morning of July 25, 1899, appellee and his companion, Nagle, who were the day men for operating the machine, went into the room, and began to cut where the night men had left off. The machine had been out of order during the night, and again got out of order, and Nagle requested appellee to go to another place in the mine for a key to fix it with, and in doing so appellee came upon William Hamilton, the ‘bottom man’ or assistant mine manager. Hamilton followed appellee into the room, and asked Nagle what was the matter with the machine, and, being told, took charge of the machine, and began to run it himself, and, as the evidence tends to show, in doing so commenced to cut to the left, cutting away a certain block of coal which had been left as a support, on which loose...