Muren Coal & Ice Co. v. Howell

• Decision Date: 24 October 1905
• Citation: 217 Ill. 190,75 N.E. 469
• Court: Illinois Supreme Court
• Parties: MUREN COAL & ICE CO. v. HOWELL.

217 Ill. 190

75 N.E. 469

MUREN COAL & ICE CO.

v.HOWELL.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, Fourth District.

Action by Herbert Howell, administrator, against the Muren Coal & Ice Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant appeals. Affirmed.

For former appeal, see 68 N. E. 456.

Wise & McNulty, for appellant.

Webb & Webb, for appellee.

HAND, J.

This was an action on the case, commenced by the appellee in the circuit court of St. Clair county against the appellant to recover damages for the death of his intestate, August Schmidt, alleged to have been caused by the negligence of the appellant.

The declaration upon which the case was tried contained two counts. The first count charged ‘that August Schmidt was in the employ of the defendant as a coal driver, his duties requiring him to haul empty coal cars from the bottom and distribute them throughout the coal mine wherever needed, and to pull loaded coal cars from the entries and rooms to the bottom of the shaft, so that they might be hoisted; that there were, prior to said date, a large number of entries and rooms in said coal mine, with laid tracks for the transportation of coal; that it was the practice of defendant, and consistent with good mining, to clear away and remove slate, clod, and other substances from both sides of the track therein for a sufficient distance to allow drivers hauling coal over said railway to pass around the sides of coal cars on said railway tracks, wherever there was room between the sides of said railway tracks and the sides of the entry, without coming in contact with slate, dirt, etc., thereby endangering such drivers while in the discharge of their duties in said coal mine; that said drivers had knowledge of said practice, relied on it, and expected the defendant to keep and maintain the said railway tracks free and clear of obstructions; that on the 28th day of March, 1900, a large lot of slate, clod, dirt, etc., fell from the roof of the eighth west entry leading off the main south entry in said mine on the railway track, at a point where there was ample room between said railway track and the rib side of said entry to allow the drivers to pass between said coal cars on said railway track and the rib side of said entry, and obstructed all that portion of said entry lying between said railway track and the rib side of said entry, so as to prevent drivers hauling coal therein from passing around coal cars on said side of said railway track, which rendered said railway track unsafe and dangerous to drivers hauling coal through said entries over said railway track; that defendant had notice of the fall of said slate, and that the same was an obstruction to that part of the said entry and the said railway track, and would prevent drivers passing through said entry from passing around coal cars on said track at that point on that side of said entry, and that it rendered said entry unsafe and dangerous; that defendant failed to remove said obstructions and abate said dangerous conditions, but negligently permitted the same to remain there until said August Schmidt was injured, well knowing said obstructions rendered said entry unsafe and dangerous; that August Schmidt on said date was hauling two loaded coal cars along said railway track to said entry, exercising due care, and without notice or knowledge that said slate, etc., had fallen from the roof of said entry, or that said entry was obstructed; and that when he reached said obstructions he discovered a coal car on said railway track immediately in front of him, and, seeing that a collision between said cars he was hauling and said car standing on said railway track was inevitable and that he would be likely to be injured, attempted to escape said collision and injury by trying to get off said railway track on the side so obstructed, but came in contact with the slate and other obstructions which had fallen from the roof, and which prevented said August Schmidt from escaping in that direction, and threw him back on the railway track between said cars, and allowed said cars to crush him, from the effects of which he afterwards died.’

The second count was in the following form: ‘That the defendant was the owner of a coal mine and operating it; that there were a large number of railway tracks in certain entries, cross-cuts, and rooms used by the defendant in transporting coal by means of draft animals and coal cars in charge of a driver; that it was the duty of the defendant to keep said roadways and railway tracks over which the driver was compelled to pass in a reasonably safe condition and free from obstructions; that the defendant negligently allowed and permitted a coal car to stand on a certain railway track and a large amount of coal, slate, etc., to remain on the side of said railway track near said standing car, obstructingthe same, and making it dangerous and unsafe for the driver to pass there while in the discharge of his duties; that on the 28th day of March, 1900, one August Schmidt was in the employ of the defendant as a driver in charge of a mule and box cars in said coal mine, his duties being to drive said mule and cars over said railway track, and while he was hauling two loaded cars along said railway track in said mine near said obstruction, in the discharge of his duty and in the exercise of due care, and without notice of said obstructions near said standing car, said two cars being hauled collided with said standing car, catching him between said two cars and said standing car, crushing and injuring him, so that he died from his injuries; that upon seeing said standing car said August Schmidt undertook to escape said collision by going from said railway track on the side thereof that was so obstructed, and was thereby prevented and thrown back upon said railway track and between said cars by reason of said obstructions, and was killed.’

The defendant filed the general issue, a plea of the statute of limitations, and a plea of former acquittal as to the second count. A demurrer was sustained as to the plea of the statute of limitations, and a replication was filed to the plea of former acquittal. The case was tried before the court and a jury, and resulted in a verdict and judgment in favor of the plaintiff for the sum of $5,000, which was reversed by this court on the ground that the court misdirected the jury as to the law, and the cause was remanded for a new trial. Muren Coal and Ice Co. v. Howell, 204 Ill. 515, 68 N. E. 456. Upon the case being reinstated in the trial court, the defendant so amended its plea of the statute of limitations that it applied to the first count of the declaration only, and the court again sustained a demurrer thereto, and upon a trial the plaintiff recovered a judgment for $3,500 upon the first count of the declaration, which has been affirmed by the Appellate Court for the Fourth District, and a further appeal has been prosecuted to this court.

It is first contended by the appellant that the court erred in sustaining a demurrer to the plea of the statute of limitations to the first count of the declaration. The injury occurred on the 28th day of March, 1900, and several declarations have been filed in the case, one of which was filed on February 3, 1902, which was within two years of the date of the injury. In the first count of that declaration it was averred ‘that it was the custom of the defendant, in constructing its railway track, to place said track near the side of said entries known as the ‘rib side,’ and a sufficient distance from the walls thereof to enable servants of defendant, passing or working in such entries, to pass between the sides of coal cars hauled on said railway tracks and the rib side of said entries without danger of injury, and keep the space between the railway track and the rib side in said entry free and clear of slate, coal, and other...