Joseph Taylor Coal Co. v. Dawes

• Decision Date: 21 February 1906
• Citation: Joseph Taylor Coal Co. v. Dawes, 220 Ill. 145, 77 N.E. 131 (Ill. 1906)
• Parties: JOSEPH TAYLOR COAL CO. v. DAWES.
• Court: Illinois Supreme Court

220 Ill. 145

77 N.E. 131

JOSEPH TAYLOR COAL CO.

v.DAWES.

Supreme Court of Illinois.

Feb. 21, 1906.

Appeal from Appellate Court, Fourth District.

Action by William Dawes against the Joseph Taylor Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Louden & Crow, for appellant.

M. W. Schaeffer, for appellee.

HAND, J.

This was an action on the case brought by the appellee against the appellant in the circuit court of St. Clair county to recover damages for an injury alleged to have been sustained by the appellee while in the employ of the appellant as a coal miner, by reason of the cage upon which he was descending into the mine of the appellant being lowered by appellant's engineer at an excessive and prohibited rate of speed. The declaration contained three counts. The first count charged that the cage was lowered into the mine at a rate of speed in excess of 600 feet per minute, in willful violation of the statute, and the second and third counts charged, respectively, that the cage was negligently and wantonly lowered into the mine, in consequence of which the appellee was injured. The general issue was filed, and a trial before the court and a jury resulted in a verdict and judgment in favor of the appellee for the sum of $3,500, which judgment was affirmed by the Appellate Court for the Fourth District, and a further appeal has been prosecuted to this court.

The first contention of appellant is that the trial court erred in declining to take the case from the jury upon its motion at the close of all the evidence. The evidence was conflicting. That of the plaintiff, however, fairly tended to show that the cage was lowered into the mine in a negligent manner and at a rate of speed in excess of that forbidden by the statute, and that as a consequence thereof the plaintiff was injured. The court did not err in submitting the case to the jury.

It is next urged that the court admitted improper evidence on behalf of the plaintiff.

The plaintiff was upon the cage alone at the time he was injured. His testimony was that at the time he was injured the cage was lowered into the mine at a high rate of speed and at a rate much in excess of 600 feet per minute. The engineer contradicted him as to the rate of speed at which the cage was lowered into the mine; his testimony being that the cage was not lowered into the mine at a prohibited rate of speed. While the testimony of the plaintiff was corroborated by the proven facts, the testimony of the plaintiff and the engineer was all the direct evidence upon the rate of speed at which the cage was lowered into the mine at the time the plaintiff was injured.

The plaintiff called a number of witnesses who were employed in the mine, and, over the objection of the defendant, was permitted to prove by them that prior to the plaintiff's injury the engineer repeatedly lowered the cage, when men were upon it, into the mine at a rate of speed greatly in excess of 600 feet per minute. This testimony, it is urged, was inadmissible, as it is said it was not permissible for the plaintiff to establish that the cage was lowered at a prohibited rate of speed at the time he was injured, by proving it was lowered at other times at a rate of speed prohibited by the statute. If such was the object of the testimony, the objection to its admission should have been sustained, as the general rule is that the plaintiff cannot establish the misconduct of the defendant upon which he bases a right to recover by proving the defendant guilty of similar acts of misconduct at another time. This general rule, however, has its exceptions, and we think the evidence here in question falls within a well-recognized exception to the general rule and was admissible. The defendant was powerless to delegate to its engineer the right to lower into its mine said cage, and thereby relieve itself from liability in case the cage was lowered at a rate of speed prohibited by the statute, and injury followed, as the duty to lower the cage at a rate of speed not in excess of 600 feet per minute was a duty resting upon the defendant, and which could not be delegated by it to its engineer so as to relieve itself from liability. Chicago & Alton Railroad Co. v. Eaton, 194 Ill. 441, 62 N. E. 784,88 Am. St. Rep. 161. The engineer, in the lowering of the cage, stood in the place of and as the representative of the defendant, and his knowledge with reference to the rate of speed at which the cage was being lowered into the mine at the time the plaintiff was injured was the...