Peebles v. O'Gara Coal Co.
| Decision Date | 23 April 1909 |
| Citation | 239 Ill. 370,88 N.E. 166 |
| Parties | PEEBLES v. O'GARA COAL CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Saline County; Charles T. Moore, Judge.
Action by John W. Peebles against the O'Gara Coal Company. Judgment for plaintiff, and defendant brings error. Affirmed.Denison & Spiller (M. S. Whitely, of counsel), for plaintiff in error.
Choisser, Choisser & Kane, for defendant in error.
This is an action on the case brought by defendant in error in the circuit court of Saline county to recover damages for injuries sustained by him while at work as a miner in plaintiff in error's mine August 13, 1906. The declaration originally consisted of four counts. The third count having been withdrawn by defendant in error, the case was tried on the first, second, and fourth counts, and plaintiff in error was found guilty by the jury on the first and fourth only; the verdict and judgment being for $1,500. This judgment was affirmed by the Appellate Court on appeal, and a writ of error has been sued out from this court. The first court was based on a violation of paragraph ‘a’ of section 16 of the mines and miners' act (Hurd's Rev. St. 1908, p. 1434, c. 93), and charged that the plaintiff in error willfully and knowingly failed and neglected to provide defendant in error with a sufficient supply of props, caps, and timbers, after demand by him therefor, as nearly as possible in suitable lengths, etc., for securing his working place, whereby a large quantity of rock and slate fell from the roof of said place and injured him. The fourth count, based on paragraph ‘b’ of section 18 of the mines and miners' act (Hurd's Rev. St. 1908, p. 1436), charged that on the morning of the day defendant in error was injured, and before he entered the mine to work, his working place was in a dangerous condition, and that plaintiff in error willfully permitted, suffered, and allowed him to enter his working place to work therein without the directions or without being under the directions of the mine manager before said dangerous place was made safe.
CARTER, J. (after stating the facts as above).
The proof shows that the defendant in error was a coal miner, 49 years of age, and was employed at the time of the accident, and for several months theretofore, in plaintiff in error's mine; that the coal was mined by being cut loose with a machine and then shot down, usually with three shots, the one in the center being called the ‘breakdown shot’; that the evening before the injury defendant in error, with the assistance of his son, who was working with him, fired three shots, but could not see the condition of the roof on account of the smoke; that on going to work the next morning he found the shots had knocked the coal down on the right and left sides, but that part of the center shot was still standing against the roof and a piece of loose slate or rock was projecting about three and a half feet; that during the afternoon, after trying without success, to pull the slate down, he started to mine down the coal which had been left standing, but struck only once with his pick when the piece of slate loosened, swung around, fell on his leg, and broke it; that he was otherwise bruised and injured, and had been able to work only about two weeks from the time of the accident to the time of the trial, some thirteen months.
Plaintiff in error does not contend that the proof was insufficient to permit recovery under the first count, in so far as relates to the defendant in error not being furnished with props and cap pieces as he requested. That question being controverted, it is admitted that the judgment of the Appellate Court affirming the findings of the trial court is conclusive on this court.
Plaintiff in error does contend, however, that the proof shows that the proximate cause of the injury was not the willful violation of the mining act by plaintiff in error, but the fact that defendant in error willfully, intentionally, and deliberately struck his pick into the coal knowing its condition, and that hence no recovery can be had. It cannot be argued from this record that defendant in error struck his pick into this coal with the intention of pulling it down upon himself and breaking his leg. The argument of counsel for plaintiff in error is plainly an attempt to avoid the conclusions necessarily drawn from the former decisions of this court in construing the act here under consideration as to contributory negligence. Such negligence by the injured person is no defense to an action based upon the mineowner's willful failure to carry out the provisions of said act. Kellyville Coal Co. v. Strine, 217 Ill. 516, 75 N. E. 375;Henrietta Coal Co. v. Martin, 221 Ill. 460, 77 N. E. 902;Eldorado Coal Co. v. Swan, 227 Ill. 586, 81 N. E. 691;Davis v. Illinois Collieries Co., 232 Ill. 284, 83 N. E. 836;Mertens v. Southern Coal Co., 235 Ill. 540, 85 N. E. 743;Olson v. Kelly Coal Co., 236 Ill. 502, 86 N. E. 88. The question here involved has been so fully and exhaustively discussed in these cases that it can serve no useful purpose to consider it again. This being the rule of law, the court rightly refused instructions 8, 10, 11, and 12.
The further argument is made that the fourth count did not state a good cause of action. Counsel for plaintiff in error contend that in order to recover under paragraph ‘b’ of said section 18 of the mines and miners' act it was necessary for defendant in error to allege and prove that the plaintiff in error had discovered the dangerous conditions complained of. Such is not the law. This court in discussing this section of the statute in Mertens v. Southern Coal Co., supra, said (page 544 of 235 Ill.,page 744 of 85 N. E.): ‘We think the jury were justified in finding, from the evidence that the roof of the mine was in a dangerous condition on the morning of the 20th, and that if the mine examiner of the appellant had made a proper examination to ascertain the condition of the roof he would have discovered its dangerous...
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Table of Cases
...§11:100 Pearl v. Chicago Transit Authority , 177 Ill App 3d 499, 532 NE2d 439 (1988), §3:160 Peebles v. O’Gara Coal Co. , 239 Ill 370, 88 NE 166 (1909), §9:70 Pegy v. Murtacik , 278 Ill App 3d 230, 662 NE2d 587 (1996), §21:160 People ex rel. Adams El. Coop. v. Camp Point , 286 Ill App 3d 24......
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Witness Examination
...or person. One is allowed to direct a witness’s attention to a particular point in controversy. Peebles v. O’Gara Coal Co. , 239 Ill 370, 88 NE 166 (1909). • Direct examination of an adverse or a hostile witness. In re Blank , 145 Ill 2d 534, 585 NE2d 105 (1991) (adverse witness); Mazzone v......