Manufacturers' Fuel Co. v. White

• Decision Date: 19 June 1907
• Citation: 228 Ill. 187,81 N.E. 841
• Parties: MANUFACTURERS' FUEL CO. v. WHITE.
• Court: Illinois Supreme Court

228 Ill. 187

81 N.E. 841

MANUFACTURERS' FUEL CO.

v.WHITE.

Supreme Court of Illinois.

June 19, 1907.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Christian County; S. L. Dwight, Judge.

Action by James White, by his next friend, against the Manufacturers' Fuel Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

Hogan & Wallace (R. J. Folonie, of counsel), for appellant.

McQuigg & Dowell (J. C. McBride, of counsel), for appellee.

This is an appeal from the judgment of the Appellate Court for the Third District affirming a judgment rendered by the circuit court of Christian county against the Manufacturers' Fuel Company, appellant, in favor of James White, appellee, by his next friend, John White, in an action on the case for personal injuries.

The injuries complained of by appellee were occasioned by a kick from a mule owned by appellant, which appellee was driving in appellant's mine, where he was employed as a mule driver. The suit was originally brought to the November term, 1904, of the circuit court. The declaration contained but one count, which alleged that appellant was engaged in the operation of a coal mine, and that in it were used a number of mules to haul empty cars to and loaded cars from the rooms of the miners; that appellee was employed as a driver and used such mule from day to day as appellant directed or required him to use; that it was the duty of appellant to furnish appellee with a mule that was safe, docile, and well adapted to the work to be performed by appellee; that appellant carelessly and negligently directed appellee to use a certain unsafe, vicious, and dangerous mule named ‘Pete,’ which mule had a dangerous and vicious propensity to kick, and which fact was unknown to appellee but well known to appellant; that appellee, while using said mule in the performance of his duties as driver, using due care and caution for his safety and without fault or misconduct on his part, was attacked and kicked by the said mule, causing him the loss of his right kidney and permanently injuring him.

A plea of the general issue was interposed, and a trial was had resulting in a verdict and judgment in favor of appellee, which was reversed and the cause remanded upon appeal to the Appellate Court. The case was redocketed in the court below, and an additional count added to the declaration, which alleged, in addition to the facts averred in the original count, that the said mule Pete, when hitched to a heavy load or overloaded, was unsafe, vicious, and dangerous, and at such times had a dangerous and vicious propensity to kick, all of which was well known to appellant and unknown to appellee; that the danger of being kicked and injured by the mule was not a danger incident to the employment nor a risk assumed by appellee, and that appellant ordered and directed him to haul with the said mule loads consisting of two loaded cars, knowing that such loads were a heavy load or an overload for said mule, and that it was dangerous to attempt to haul such loads with said mule; that the injury complained of occurred while appellee was attempting to haul two loaded pit cars under the order and direction of appellant. The general issue was refiled, and a second trial resulted in a verdict and judgment for $1,750 in favor of appellee. At the close of the evidence the court denied a motion by appellant for a peremptory instruction.

The evidence discloses that appellee was first employed as a mule driver by appellant during the month of December, 1903, in one of its coal mines, and during that time occasionally drove the mule Pete. He worked there through December, and then for a short time in January was employed by another, when he returned to work for appellant and continued in its employ until the latter part of March, frequently driving the mule Pete. Appellee was then discharged because it was believed he had whipped one of the mules. After his discharge he was away from the mine about 10 days, when he was again put to work by appellant, and from that time on drove the mule Pete almost continuously until the time of his injury, on the 2d day of May, 1904. Appellee was then 17 years of age. The mule Pete, which had been used in the mine for six or seven years, was a strong, spirited animal, and, when kindly treated and used in hauling ordinary loads, was easy to handle, but when stuck or used in hauling heavy loads had a vicious and unusual propensity to kick, and was dangerous to the person driving or handling him. Up to the day prior to the date of his injury appellee had been hauling one car of coal at a time with this mule, and this was considered an ordinary load. On that day appellee was instructed by appellant to haul two cars of coal at a trip out of the entry known as the ‘tenth south.’ In this entry was a good, clean track, and appellee had no difficulty in making the two-car trips with the mule. On the day following he was ordered to pull two-car trips out of the ninth south, which had a dirty track that made the load more difficult for the mule. Appellee, while making a trip, had picked up one loaded car and had stopped at the neck of one of the rooms for the second one. The second car was pushed out, coupled to the rear of the first, and appellee took his seat on the front end of the forward car directly behind the mule, which was hitched to the car by means of a chain. As soon as appellee was seated he spoke to the mule, which started forward until he tightened the chain and then began to back, kicking viciously. When the mule started back, appellee made an attempt to get out of the way, but failed, and was struck on the right side of the lower part of...