The Litchfield Coal Co. v. Mary A. Taylor.

• Decision Date: 31 January 1876
• Citation: 1876 WL 10051,81 Ill. 590
• Parties: THE LITCHFIELD COAL COMPANYv.MARY A. TAYLOR.
• Court: Illinois Supreme Court

81 Ill. 590

1876 WL 10051 (Ill.)

THE LITCHFIELD COAL COMPANY

v.MARY A. TAYLOR.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Montgomery county; the Hon. HORATIO M. VANDEVEER, Judge, presiding.

Messrs. RICE & MILLER, and Mr. E. SOUTHWORTH, for the appellant.

Mr. R. M. WILLIAMS, and Mr. E. LANE, for the appellee. Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action, brought by Mary A. Taylor, widow of James Taylor, deceased, against the Litchfield Coal Company, to recover damages for an injury received by the deceased, resulting in his death, alleged to have been caused by the willful conduct of the defendant in using uncovered cages for the purpose of conveying the miners into and out of the mine, and in hoisting coal from the mine at the same time the miners were being hoisted from the mine, in violation of the provisions of chapter 93, entitled “Miners,” Revised Statutes of 1874, p. 704.

A trial of the cause before a jury resulted in a verdict in favor of the plaintiff for $1500. The court overruled a motion for a new trial and rendered judgment upon the verdict, to reverse which the defendant has taken this appeal. In the commencement of the action appellee sued as administratrix of the estate of James Taylor, deceased. Subsequently, on motion, the court allowed the summons and declaration to be amended so that the action might proceed in the name of appellee as widow of the deceased. This amendment is assigned as error. We are satisfied the widow was the proper person to bring the action. The 14th section of the act expressly authorizes her to bring the suit. Chapter 70, entitled “Injuries,” R. L. 1874, p. 582, which authorizes an action in the name of the personal representatives, did not repeal the 14th section of the act entitled “Miners.” The former act is general, while the act in relation to miners may be regarded as special, and the latter must control as to all cases specially enumerated in the act itself, while the other act, being general, would embrace all other cases. Town of Ottawa v. Town of LaSalle, 12 Ill. 339.

In regard to the extent of the amendment, there can be no doubt but the court had ample power under the liberal provisions of section 24 of the Practice Act. Teutonia Life Insurance Co. v. Mueller, 77 Ill. 22. Nor was the amendment ground for a continuance unless application had been made in the manner provided by section 26 of the Practice Act, supported by affidavit. That was not, however, done, and the decision of the court overruling the motion for a continuance was proper.

In the first count of the declaration it was averred that appellant hoisted coal from its mine at the time Taylor was ascending, and the deceased was killed in consequence of that illegal act of the company.

The court was requested by appellant to instruct the jury that there was no evidence before them upon the first count of the declaration. This was refused, and, at the request of appellee, the following was given:

“The court instructs the jury, for the plaintiff, that the defendant could not lawfully hoist any coal out of its mine while persons are ascending out of or descending into its said mine, and if the jury believe from the evidence that James Taylor was an employee of defendant in said mine, and that the defendant willfully undertook to hoist said Taylor out of its mine while it was hoisting coal out of said mine, and that thereby the said James Taylor was killed, the jury will find the defendant guilty on the first count of the declaration, if they find from the evidence that the plaintiff is the widow of said deceased.”

The appellant claims that the record contains no evidence upon which the instruction can be predicated. We do not so understand the testimony. The evidence introduced tends to prove that the box of coal appellant was hoisting from the mine when the accident occurred was not entirely up when the person in charge of the cage permitted the miners in the mine to go upon the cage for the purpose of being hoisted. James Reeves, in his evidence, says, “The men did not have hold of the box when the coal rolled off. As the top of the coal came through the ‘catches' the coal was raked off.” When this occurred the miners were upon the cage. They supposed the signal had been given for them to go upon it, and the person in charge of the cage must have so understood it himself, or he would not have allowed them to go upon it. It is true, the cage had not commenced to go up when the accident occurred, but it was in the act of starting, and the danger proved to be as great as if it had been advancing at the time.

We are satisfied the facts proved were sufficient to justify the submission of the question presented by the instruction to the jury.

In the second count of the declaration it is in substance averred that appellant willfully used in its mine uncovered cages to hoist out and lower into the mine the persons employed to work therein, and that the deceased had gone upon an uncovered cage of the company for the purpose of being hoisted out of the mine, and that while upon the cage for the purpose of being hoisted a lump of coal fell down the shaft, striking the deceased upon the head, which resulted in his death, by reason of the cover being, at the time, off the cage. It is urged by appellant that the proof does not correspond with the averments of the declaration, and hence it was error to give appellee's third instruction, which was predicated upon the evidence introduced under the second count. We have examined the proof with care, and fail to...