Staunton Coal Co. v. Bub

• Citation: 75 N.E. 770,218 Ill. 125
• Parties: STAUNTON COAL CO. v. BUB.
• Decision Date: 24 October 1905
• Court: Supreme Court of Illinois

218 Ill. 125

75 N.E. 770

STAUNTON COAL CO.

v.BUB.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, Fourth District.

Action by William Bub against the Staunton Coal Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.

Rehearing denied December 7, 1905.Percy Werner (Travous, Warnock & Burroughs, of counsel), for appellant.

Burton & Wheeler and Jett & Kinder, for appellee.

This is an action on the case brought by William Bub in the circuit court of Madison county against the Staunton Coal Company to recover for personal injuries sustained. The fourth count of the declaration, upon which the case was tried, alleges that the defendant was the operator of the coal mine at which the plaintiff was employed as a cager, at the bottom of the shaft, to place cars and boxes of coal on the cage and to remove boxes and cars therefrom; that the cage was operated by steam power and was raised and lowered in the shaft by means of an engine, and it was the duty of said defendant not to place in charge of said engine any other than a competent engineer and one who would not hoist the cage from the bottom until he had received the signal so to do, and that, regardless of this duty, defendant placed and kept in charge of said engine an engineer who was not competent and who did not regard the said signals, and who habitually hoisted the said cage without any signal, and had been in the habit of so doing to the knowledge of the defendant; that, while the plaintiff, in the exercise of due care and caution, was performing his duties as an assistant cager, and was assisting in loading a box of coal on said cage, the engineer, on account of said incompetency and on account of his disregard of the signals, suddenly started to hoist the cage, and thereby plaintiff was brought with great force and violence between the shaft and the ascending cage, and was dragged upwards against the side of the shaft for a distance of 150 feet, whereby his arm, collar bone, and jaw bone were broken and his ear torn, and he was otherwise injured, to his damage of $5,000. Upon a trial before the court and a jury judgment was rendered against the defendant for $3,200. The same has been affirmed by the Appellate Court and a further appeal prosecuted to this court.

WILKIN, J. (after stating the facts).

Proper motions were made to instruct the jury to find for the defendant, which were overruled, and the question therefore arises whether or not there is any evidence in the record fairly tending to prove that the engineer (King) was incompetent, that the defendant knew of such incompetency, and that the plaintiff, while in the exercise of due care, was injured by the negligence of said engineer; these being the material and substantial facts of plaintiff's case. Appellee was assistant cager at the bottom of the shaft, and on the day of his injury an attempt had been made to place a box of coal on the cage. It left the track, or was derailed, at the point where the track on the bottom met the points of the rails on the cage. In his efforts to assist other laborers to replace the car on the rails, plaintiff stood on the cage near the side or end, in a stooping posture, with his back to the car. While in this position and so engaged, the engineer hoisted the cage, and one of the men by the name of Bayliss was thrown off and killed, and plaintiff was carried up and injured by being dragged against the side of the shaft. There is no dispute as to the fact that the injury was caused by the untimely hoisting of the cage by King, the engineer. All of the men working at the bottom of the shaft, being the only persons by whom a signal to raise the cage could properly be given, testified that no signal was given. Several other witnesses, who had worked in the mine for various lengths of time, testified that during the time in which King was hoisting engineer he hoisted the cage without signal on many different occasions. Two of these witnesses, Allen and Vanderberry, testified that the defendant had actual notice of the manner in which King handled the cage without signal. This evidence tended to prove the allegations...