McCarthy v. Spring Valley Coal Co.

• Citation: 83 N.E. 957,232 Ill. 473
• Parties: McCARTHY v. SPRING VALLEY COAL CO.
• Decision Date: 20 February 1908
• Court: Supreme Court of Illinois

232 Ill. 473

83 N.E. 957

McCARTHY

v.SPRING VALLEY COAL CO.

Supreme Court of Illinois.

Feb. 20, 1908.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Bureau County; R. M. Skinner, Judge.

Action by Patrick McCarthy against the Spring Valley Company. From a judgment of the Appellate Court affirming a judgment for plaintiff after requiring a remittitur, defendant appeals. Reversed and remanded.

McDougall, Chapman & Bayne, for appellant.

Duncan, Doyle & O'Connor, for appellee.

This is an action on the case in the circuit court of Bureau county to recover damages for personal injury sustained in the appellant's coal mine. The negligence charged in the first and second counts of the declaration is that appellant permitted the entry where the injury occurred to be and remain in an unsafe and dangerous condition, and negligently permitted the roof thereof to become cracked and broken and in danger of falling, by reason of which, while appellee was in the entry in the discharge of his duty, and in the exercise of ordinary care for his own safety, a mass of rock, stone, and dirt comprising part of the roof fell upon and injured him. The third count charged appellant with negligently failing to prop, timber, or support the roof. A trial resulted in a verdict and judgment against appellant for $10,000, which the Appellate Court, after requiring a remittitur of $2,000, has affirmed. To review the judgment of affirmance, this appeal is prosecuted.

DUNN, J. (after stating the facts as above).

It is insisted that there is no evidence fairly tending to prove the negligence charged in the declaration. Appellee was employed by appellant as a driver, and worked in the mine at night. About 3 o'clock in the afternoon of August 14, 1906, he entered the mine and was informed by the night boss that he would have men at the face of the coal in a certain entry and in a gobroom. It then became appellee's duty to go to the face of the coal in that entry and haul out to the gobroom such cars loaded with rock and earth as the men might have ready for him. He made three trips before supper. After supper, about 8 o'clock, as he was going through this entry to reach the face of the coal, a mass of rock and earth fell upon him from the roof, the amount being variously estimated at from 1,800 pounds to 4 tons. His right arm was crushed between the rock and the rail, so that it had to be amputated four or five inches above the wrist, and he was injured about the hips and back and across the kidneys; byt these latter injuries are not shown to be of a permanent nature. The evidence tends to show that there had been a serious fall of rock from the roof of this entry at or near the place of the accident during the previous day, and another at the place of the accident two or three days before, and on the day of the accident the roof was badly cracked and broken and had openings in it three or four inches wide. This condition of the roof was known to the employés of the appellant, whose duty it was to look after the roof and mark dangerous places. The mine examiner, after the last fall of rock on the night before the accident, examined the place and put no danger signal there, notwithstanding the fact that there had been a fall of rock prior to his examination.While there was also evidence tending to show that the roof at the point in question was safe just prior to the accident and did not need support, and that appellant did not know of its dangerous condition, and had performed all of the duties required of it by law for the safety of appellee, yet the evidence on these points was in conflict, and presented a question of fact for the consideration of the jury. The court, therefore, committed no error in refusing to instruct the jury to return a verdict for appellant.

It is urged that, if the dangerous condition of the roof was so apparent, appellee, who was an experienced driver, familiar with the manner in which the mine was operated and the dangers incident thereto, was guilty of contributory negligence in repeatedly passing under the roof without examining it to see if it was safe. The duties of appellee required him to drive a mule and car along the entry. He had never worked in this entry before, and had no notice of the various falls of rock. His only light was a lamp on the front of his cap, which it was necessary to keep turned upon the path along which he was driving. As he passed along the entry he examined the roof for chalk marks, which indicated loose rock or dangerous places, but did not find any. In the discharge of his duties it was impossible for him to make a minute examination of the roof for dangerous conditions. He was not required to do so, but had the right to rely upon the inspection which appellant's other servants employed for that purpose were supposed to have made. He was not guilty of contributory negligence in relying upon such inspection. Himrod Coal Co. v. Clark, 197 Ill. 514, 64 N. E. 282.

It is insisted that the fall of rock was the result of a squeeze, which could not be foreseen or avoided; that appellee was aware of the probability of injury from a squeeze, and therefore assumed the risk, and cannot recover for his injuries. There is evidence to the effect that on the day of the accident there was a squeeze in the mine, and that some of the men working at the face quit work on account of it; but the evidence is indefinite as to the extent of the squeeze, and its effect in various parts of the mine. The jury were fully instructed as to the law on the assumption of risk; and it was a question of fact, fairly presented, as to whether the accident was caused by a squeeze, or by the negligence of the appellant in suffering the roof to be and remain in a dangerous condition.

The court admitted evidence to show the condition of...