Kalinski v. Williamson Cnty. Coal Co.

• Decision Date: 23 April 1914
• Docket Number: No. 9240.,9240.
• Parties: KALINSKI v. WILLIAMSON COUNTY COAL CO.
• Court: Illinois Supreme Court

263 Ill. 257

104 N.E. 1097

KALINSKI

v.WILLIAMSON COUNTY COAL CO.

No. 9240.

Supreme Court of Illinois.

April 23, 1914.

Error to Appellate Court, Fourth District on Appeal from Circuit Court, Williamson County; A. E. Somers, Judge.

Action by Frances Kalinski, administratrix, against the Williamson County Coal Company. Judgment for plaintiff was affirmed by the appellate court, and the defendant brings error. Reversed and remanded.

Dennison & Spiller, of Marion (Mastin & Sherlock, of Chicago, of counsel), for plaintiff in error.

Neely, Gallimore, Cook & Potter, of Marion, and Schaefer & Kruger and T. R. Mould, all of Belleville, for defendant in error.

CARTWRIGHT, J.

The Appellate Court for the Fourth District affirmed a judgment recovered by Frances Kalinski, administratrix of the estate of her husband, Peter Kalinski, deceased, in the circuit court of Williamson county, against the Williamson County Coal Company for damages occasioned by his death while in the employ of the coal company as a timberman, and a writ of certiorari was granted to bring the record here for review.

The action was not under the Mining Act, and an intention to make any claim or to sustain the judgment under any provision of that act is disclaimed by counsel.

There were five counts in the declaration, all charging the same act of the mine manager as causing the death of Kalinski, and some alleging that the act was negligent, merely, while others charged that it was willful. Each court alleged that Kalinski was employed to work in the mine as a timberman's helper; that his duty was to assist in cleaning up falls of slate from the roof of the mine and to assist in propping and securing the roof; that a fall of slate and other substances occurred shortly prior to the morning of December 12, 1910, in an entry called the second west off the eleventh north on the east side, leaving accessible edges and other portions of the roof in a dangerouscondition and liable to fall; and that while Kalinski was working in said room cleaning up the fall a large portion of the roof fell upon him, so injuring him that he died, leaving the plaintiff, his widow, and three children, surviving. The first count alleged that the dangerous condition was discovered and marked by the defendant's mine examiner on said morning before the men entered the mine; that Kalinski did not know of the danger nor have equal means of knowledge with the defendant; that the defendant, with knowledge of the danger, ordered him to hurry up and assist in cleaning up the fall and failed to warn him of the dangerous condition; and that the danger mark had become obliterated at the time he commenced to work. The second count alleged that the dangerous condition and liability of the roof to fall was discovered and marked by the defendant's mine examiner the morning before the men entered the mine but Kalinski did not know of the danger; that defendant, with knowledge thereof, ordered Kalinski to hurry up and assist in cleaning up the fall and willfully failed to warn him of the dangerous condition, and that the mark had become greatly obliterated and effaced when he commenced to work. The third count alleged that the condition of the roof was discovered and marked by defendant's mine examiner; that Kalinski did not know of the danger nor have equal means of knowledge with the defendant; that defendant, with knowledge of the danger, negligently ordered him to hurry up and assist in cleaning up the fall; and that the mark had become greatly obliterated and effaced when he commenced to do the work. The fourth count alleged that Kalinski was inexperienced in detecting dangerous conditions in the roof, having had less than two weeks' experience in that work, which the defendant knew or by the exercise of ordinary care could have known; thay by reason of inexperience Kalinski did not understand and appreciate the danger; that a fall had occurred, leaving the roof in a dangerous condition and liable to fall, which defendant knew or by the exercise of due care might have known, and which Kalinski did not know and did not have equal means with the defendant of knowing; and that the defendant ordered him to assist in cleaning up the fall and failed to warn him of the danger. The fifth count alleged that the condition of the roof was discovered and marked by the mine examiner before the men entered the mine; that Kalinski did not know of the danger, and the defendant, with knowledge of the danger, willfully ordered him to hurry up and assist in cleaning up the fall; and that the mark, at the time he commenced to work, had become obliterated and affaced.

There was no material conflict in the evidence; the only difference being that the mine manager thought Kalinski had been a timberman three or four weeks, while Kalinski's brother said that it was five or six days, and maybe one day more. Kalinski was a Lithuanian, who had been in this country 12 or 13 months and had worked for the defendant for 6 or 7 months at the bottom of the shaft as cager or assistant cager, assisting in loading and unloading men and cars of coal on and off the cages and attending to the operation of the cages in the shaft. Mike Waski was a timberman in the mine who had worked for the defendant about eight years, and he was also a Lithuanian. The duties of timbermen were to go wherever directed by the mine manager in the mine and timber up places where there had been falls which rendered the place dangerous. If a fall occurred making a place dangerous it was the duty of the mine manager to direct the timbermen to go to the place and timber it up and make it safe. Kalinski applied to the mine manager for a job as timberman and asked to be allowed to go as a timberman with Mike Waski. The mine manager asked him if he could do that character of work, and he said he thought he could. The mine examiner made his regular examinations, as required by law, between midnight and morning of each day and marked falls and dangerous conditions and reported the same to the mine manager, who would send the timbermen to make them safe, as required by the Mining Act. On the morning of December 12, 1910, the mine examiner found a dangerous condition in the main east entry, or straight east entry, as it was called by some of the witnesses. He also discovered a fall in the second west off the eleventh north entry, leaving ragged edges, which were loose and dangerous. He made conspicuous marks with chalk on the loose edges and made a danger mark with chalk in the bottom of the roadway, and reported the condition to the mine manager and entered his report in the daily inspection book....