Kellyville Coal Co. v. Strine

• Decision Date: 24 October 1905
• Citation: 217 Ill. 516,75 N.E. 375
• Parties: KELLYVILLE COAL CO. v. STRINE.
• Court: Illinois Supreme Court

217 Ill. 516

75 N.E. 375

KELLYVILLE COAL CO.

v.STRINE.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, Third District.

Action by Desire Strine against the Kellyville Coal Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

H. M. Steely, for appellant.

Swallow & Swallow, for appellee.

This is an action in case under the mining statute to recover for injuries sustained by a fall of rock from the face of appellee's working place, known as room No. 11 on the third west entry off the second south main entry in mine No. 2 of appellant, on January 19, 1903, at about 10:30 o'clock a. m. The declaration alleged the injuries to have been sustained through willful failure and neglect of appellant to comply with the statute. In the trial court appellee recovered judgment for the sum of $2,000, from which an appeal was taken to the Appellate Court, where the judgment has been affirmed. The present appeal is prosecuted from such judgment of affirmance.

The declaration consists of four counts, of which the first, second, and fourth allege that appellee required props and cap pieces to prop and support the roof of the room in which he was employed in mining coal; that he did not have any; that on January 17, 1903, and on prior days, he ordered props and cap pieces; that defendant willfully failed to deliver them; and that in consequence thereof a large rock fell from the roof of appellee's room, striking him with great force, dislocating certain vertebrae in his back and otherwise injuring him. The third count of the declaration alleges that it was the duty of the defendant to have its mine examiner inspect all places where men were expected to pass or work, to see whether there were any unsafe conditions, and, where such were found, to place a conspicuous mark as notice to all men to keep out; that there was a large, loose rock in the roof of appellee's room, which formed an unsafe condition; that on January 19, 1903, the mine examiner willfully failed to inspect the room and place a conspicuous mark thereat as notice to all men to keep out; and that by reason of such failure to mark, and while in the usual course of his employment as a miner in said room, the rock fell and struck him, dislocating certain vertebrae in his backbone and otherwise injuring him, to his damage in the sum of $20,000.

As is said by the Appellate Court in their opinion deciding this case: ‘The evidence discloses that appellee had been working in appellant's mine for about five years; that some six months prior to the accident he and his stepson has turned a room known as No. 11, which at the time of the accident was 30 feet in width and 75 feet deep from the side of the entry. On Saturday afternoon, January 17, 1903, appellee fired two shots in the room, and then quit work. Over the place where the shots were fired was what is known as a ‘roll,’ which projected out into the room five or six feet from the face of the coal and extended clear across the room. On resuming work on Monday morning the 19th, appellee, upon sounding the roof, discovered that a bit of the rock forming the roll was loose. At about 10:30 o'clock, while appellee was on his knees, endeavoring with a pick to remove the coal under the roll, which the shots had failed to throw out, and which was about 4 1/2 feet deep, a piece of rock about 18 inches thick fell upon and injured appellee. The evidence shows that timbers at mines are furnished only in even foot lengths, and nearly all upright timbers used at this mine are seven feet in length, while crossbars or horizontal timbers are nine feet in length. In other words, the length of the upright timbers depends upon the thickness of the vein of coal, and the length of the horizontal timbers depends upon the width of the entries and the width of the room necks. Props are used both in entries and rooms, but crossbars are used only in entries and room necks, or narrow passages. The evidence further shows that if, by reason of a horseback or roll occurring in the roof, a little longer timber is required, it was the custom of the miners, without making a special order for a longer timber, to put a cap piece or wedge over the top of the prop, and sometimes one under the bottom also, thus lengthening the timber seven or eight inches; and, where the timber is too long, the miners themselves either dig a place in the fire clay at the bottom, or cut a piece off of the timber, so that they can use it.'

Appellee's evidence tends to show that appellee and his stepson, Ernest West, about 17 years old, who were working together in the room in question (the latter being called appellee's ‘buddy’), ‘on the morning of the accident had no timbers in the room, and that they went out upon the entry, and up and down the entry for a long distance on each side of their room, and could find no timbers to prop and timber this loose rock, or the roll, in their room; that there were none either in the entry or in the room, except three crossbars or nine-foot timbers in the neck of their room, one of which had been broken, and the other two had been bent by the weight of loose slate that came down upon them, and that they had taken these timbers down and thrown them to one side, and that the same were not fit to cut and use as short props to support this loose rock or roll in their room; * * * that they had ordered timbers from one Farley, the timberman, on the Saturday previous to the accident, but that none were delivered to them; that, if they had been furnished timbers, they could have propped the roof so as to have prevented the falling of the rock; that timbers were usually delivered to them at the side of the switch track in the neck of the room, or on the side of the entry next to the room neck.’ The evidence of the appellant tends to show ‘that, at the time of the accident, there were sufficient and suitable timbers either in the room, room neck, or in the entry adjacent thereto, to properly prop the roof.’

Upon the question whether the mine examiner had made an examination of the room in question on the day of the accident before appellee entered it, the testimony of appellee tends to show ‘that the first thing they did, when they entered the room on the morning in question, was to look for chalk marks; that they examined both the roof and timbers, and found none of any kind, except the figures ‘17’ on a timber about 24 feet from the face of the coal, which referred to the examination of Saturday, the 17th.' The evidence of the appellant tends to show that the mine examiner ‘examined the room on the morning of the accident, and finding the rock loose, wrote with chalk on the face of the roll figures indicating the day of the month, and also a cross-mark, but that, owing to the dampness of the room, chalk marks would not show as distinctly as in a dry place.’

MAGRUDER, J. (after stating the facts).

The first, second, and fourth counts of the declaration charge a willful failure to deliver timbers to appellee upon his order, and that such willful failure was the cause of the accident and injuries sustained by him. The evidence under these counts was conflicting. The issues under the third count were whether or not there had been a failure by the appellant company to have the room examined by its mine examiner on the night preceding the accident, and whether or not there had been a failure by said examiner to place a conspicuous mark thereat as notice to all men to keep out. The evidence upon the issues under the third count was also conflicting. There was evidence, however, tending to sustain the cause of action under all the counts, and therefore, under the repeated rulings of this court, no error was committed by the trial court in refusing to instruct the jury to find for the defendant below. The questions of fact are all settled by the judgment of the circuit court in favor of plaintiff below, and the judgment of the Appellate Court affirming the same. The only questions, therefore, which remain for our consideration, are questions of law.

First. Before the beginning of the trial in the court below the appellant made a motion for a continuance of the cause and filed an affidavit in support thereof. The court refused to grant the continuance, and this refusal is assigned as error. Appellant proposed to show by a witness named Crayton, who was absent in Indiana on account of sickness, that he was in appellee's room in the mine shortly before the accident occurred, and discovered that the rock, which afterwards fell upon the appellee, was loose and dangerous, and called appellee's attention to it, and told him that it was dangerous, and advised him not to go under it. The declared object of the appellant was to prove by this absent witness that appellee not only had notice of the defect, but also had notice that it was a dangerous defect. The court did not err in refusing the continuance, because the testimony of the absent witness, if he had been present and testified, was immaterial in this kind of a case; and not only was this so, but the result could not have been affected by the proposed evidence of Crayton, inasmuch as appellee admitted that, before the accident, he had knowledge of the condition which Crayton was to testify to.

Section 18 of the act of April 18, 1899 (Laws 1899, p. 317), ‘to revise the laws in relation to coal mines and subjects relating thereto, and providing for the health and safety of persons employed therein,’ provides that ‘a mine examiner shall be required at all mines. His duty shall be to visit the mine before the men are permitted to enter it, and, first, he shall see that the air current is traveling in its proper course and in proper quantity. He shall then inspect all places where men are expected to pass or to work, and observe whether there are any * * * unsafe conditions. * * * As evidence of his examination...