New Staunton Coal Co. v. Fromm

• Decision Date: 05 February 1919
• Docket Number: No. 12160.,12160.
• Citation: New Staunton Coal Co. v. Fromm, 286 Ill. 254, 121 N. E. 594 (Ill. 1919)
• Parties: NEW STAUNTON COAL CO. v. FROMM.
• Court: Illinois Supreme Court

286 Ill. 254

121 N.E. 594

NEW STAUNTON COAL CO.

v.FROMM.

No. 12160.

Supreme Court of Illinois.

Dec. 18, 1918.

Rehearing Denied Feb. 5, 1919.

Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Madison County; J. F. Gillham, Judge.

Action by Peter Fromm against the New Staunton Coal Company. Judgment for plaintiff affirmed by Appellate Court, and defendant petitions for certiorari. Affirmed.William E. Wheeler, of East St. Louis, for plaintiff in error.

Harold J. Bandy, of Granite City, for defendant in error.

CARTER, J.

This was an action brought in the circuit court of Madison county by defendant in error against plaintiff in error to recover damages for personal injuries sustained by him in the coal mine of plaintiff in error. A verdict for $2,000 was obtained in favor of defendant in error, upon which judgment was entered. An appeal was taken to the Appellate Court for the Fourth District, where the judgment was affirmed, and the cause has been brought here by certiorari.

The original declaration filed September 16, 1916, consisted of two counts. A general demurrer filed to both these counts was sustained, and February 16, 1917, defendant in error filed an amended declaration of eight counts. A demurrer was sustained to the first seven of these counts, and the eighth count was thereafter abandoned by defendant in error, who later, March 28, 1917, filed an amended declaration consisting of five counts. This last declaration was filed more than two years after the date of the injury. A demurrer filed to this declaration was sustained as to the first, second, third, and fifth counts, and overruled as to the fourth count. Thereafter plaintiff in error filed a plea of general issue and a special plea of the statute of limitations to the fourth count. Defendant in error demurred to said special plea, and the demurrer was sustained. Plaintiff in error elected to abide by such plea, and the case was tried solely on the fourth count of the amended declaration. This alleged, generally, as did the second count of the original declaration, common-law negligence. The principal question involved here is as to whether the fourth count was a mere restatement, in better form, of the same cause of action stated in the second count of the original declaration.

It seems to be conceded by counsel for plaintiff in error that, if the fourth count of the amended declaration is merely a restatement of the cause of action, then the demurrer to the fourth count was properly overruled; but it is earnestly argued that the second count of the original declaration did not state a cause of action. That count, after alleging the ownership and operation of the coal mine by plaintiff in error and the employment of defendant in error therein, further alleged that on November 18, 1914, defendant in error was engaged as an employé of plaintiff in error in loading coal in room 46 of the mine; that on that day the coal in the roof of room 46 was loose and likely to fall and injure persons working therein, all of which facts plaintiff in error knew or could have known by the exercise of ordinary diligence; that therefore it became and was the duty of plaintiff in error on said date to notify defendant in error that the coal in the roof was loose and likely to fall and injure persons working in said room; and that plaintiff in error did not regard its duty in that behalf, but, on the contrary, negligently and carelessly permitted defendant in error to load coal in said room without knowledge of the dangerous condition, whereby he was struck and injured, etc.

It is the duty of an employer to use reasonable care to provide an employé a reasonably safe place in which to work. Metcalf Co. v. Nystedt, 203 Ill. 333, 67 N. E. 764. It is not sufficient to allege in the declaration that it is the duty of the defendant to do certain things, as that would be but the averment of a conclusion; but the declaration must state facts from which the law will raise the duty. McAndrews v. Chicago, Lake Shore & Eastern Railway Co., 222 Ill. 232, 78 N. E. 603;Bahr v. National Safe Deposit Co., 234 Ill. 101, 84 N. E. 717. The duty, if any exists, must arise from the facts stated. Said count 2 alleged the ownership and operation of the mine by plaintiff in error; that defendant in error was employed by plaintiff in error and was engaged as its servant in loading coal in room 46; that the roof of said room was in a dangerous condition; that plaintiff in error knew of such dangerous condition, or could have known the same by the exercise of reasonable care; and that it also knew that defendant in error, as such servant, was engaged in loading coal in said room....