Wendzinski v. Madison Coal Corp.

• Decision Date: 06 February 1918
• Docket Number: No. 11240.,11240.
• Citation: 118 N.E. 435,282 Ill. 32
• Parties: WENDZINSKI v. MADISON COAL CORP. et al.
• Court: Illinois Supreme Court

282 Ill. 32

118 N.E. 435

WENDZINSKI

v.MADISON COAL CORP. et al.

No. 11240.

Supreme Court of Illinois.

Dec. 19, 1917.

Rehearing Denied Feb. 6, 1918.

Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Madison County; Louis Bernreuter, Judge.

Action by John Wendzinski against the Madison Coal Corporation and others. A judgment for plaintiff was affirmed by the Appellate Court (203 Ill. App. 1), and defendant named and another bring certiorari. Reversed and remanded.

Duncan, J., dissenting.Charles H. Burton and Charles W. Burton, both of Edwardsville (John G. Drennan, of Chicago, of counsel), for plaintiffs in error.

William M. P. Smith and Terry, Gueltig & Powell, all of Edwardsville, for defendant in error.

CARTWRIGHT, J.

John Wendzinski, a miner employed by the Madison Coal Corporation, which had elected not to provide and pay compensation according to the Workmen's CompensationAct (Hurd's Rev. St. 1915-16, c. 48, §§ 126-152h), lost his eyesight by the explosion of a cartridge while it was about halfway back in a hole four feet deep, which he had bored for the purpose of shooting down coal. He brought a suit in the circuit court of Madison county against his employer and William Turton, mine manager, and J. F. Anderson, assistant mine manager, for damages resulting from his injury. Upon a trial there was a verdict for $15,000 against the three defendants. A motion for a new trial was made, whereupon the plaintiff dismissed the suit as to J. F. Anderson, and the motion was denied and judgment was rendered on the verdict against the corporation and Turton. The Appellate Court for the Fourth District affirmed the judgment, and a writ of certiorari was awarded to bring the record to this court for review.

The cause was tried on an amended declaration consisting of three counts, the first of which charged that the explosion was caused by the willful failure of the Madison Coal Corporation, by its manager and assistant mine manager, to instruct the plaintiff concerning the proper handling of explosives which he was required to handle. The second and third counts charged liability against the defendants for negligence at common law, and alleged that the plaintiff was a foreigner who had recently come to this country and was unacquainted with the English language and inexperienced in the use of powder, which the defendants knew or could have known by the use of ordinary care, but they failed to instruct him in the proper manner of doing his work and handling powder, and as a result of the defendants' negligence he improperly attempted to tamp the cartridge into place and received the injury.

The plaintiff was born in Posen, in Poland, and was thirty-two years old at the time of the injury. He had worked two or three years in coal mines in Europe, and had bored holes for firing shots, but had never handled explosives; that work being done by shot firers. He came from Germany to Glen Carbon, where the coal mine of the MadisonCoal Corporation is situated, and obtained a certificate from the miners' examining board that he had given satisfactory evidence that he had worked in coal mines at the face for not less than two years, and the board certified to his competency and authorized him to seek and accept employment as a coal miner. On February 6, 1913, he was employed by the Madison Coal Corporation as a miner in its mine No. 4, where he worked until the mine was shut down in April, 1913, and a short time afterward he was employed by the same corporation in its mine No. 2, where he remained at work at the face of the coal for several months until he was injured, on October 20, 1913. No shot firers were employed in the mine, but the miners bought their own powder, drilled their own holes, made their own cartridges, placed and tamped the cartridges, and fired the shots. J. H. Miller was mine manager of mine No. 4, and William Turton was mine manager and J. F. Anderson assistant mine manager of mine No. 2. The plaintiff was given no instruction by Miller, Turton, or Anderson with reference to the manner in which he should place, load, drill, tamp, or fire shots at his working place in the mine.

Section 20 of the Mining Act (Hurd's Rev. St. 1915-16, c. 93) defines the powers and duties of the manager, and paragraph 14 of clause (a) requires him to give attention to and instructions concerning the proper storage and handling of explosives in the mine, and the first count charged a willful failure to perform that duty. Section 1 of the act of 1908 (Laws 1908, p. 90) prohibited the employment of any person as a coal miner without first having obtained a certificate of his competency and qualification from the miners' examining board. It was contended that, the plaintiff having obtained such a certificate, the defendants might assume his qualification and competency and his knowledge of the proper method of placing and firing shots, and were therefore relieved of the statutory duty of instructing him in the proper storage and handling of explosives. The duty to give instruction is a positive one enjoinedby statute, and the employer is not relieved of the duty simply on the ground that the board of mine examiners has granted a certificate of competency and qualification. So far as the first count of concerned, the certificate did not tend to prove any defense.

[2] As to the second and third counts, charging negligence at common law, the certificate was competent evidence on the question whether the defendants knew, or would have known by the use of ordinary care, that a miner holding such a certificate was ignorant and required instruction in the proper manner of doing his work.

[4] The corporation, having elected not to provide and pay compensation according to the Workmen's Compensation Act, was deprived of certain defenses, but plaintiff was not relieved by the statute from proving negligence of the defendants, and as to either of the common-law counts the defendant Turton was entitled to his common-law defenses of contributory negligence, assumed risk, and fellow servant. Both by the declaration and the evidence the plaintiff was improperly doing his work at the time he received his injury, and the question of contributory negligence was available to Turton under the common-law counts.

The defendants offered to prove by the state mine examiner of the district and the county mine inspector that in the operation of all mines in that district, including mines in Madison county and adjoining counties, at no time were practical miners instructed in reference to the manner in which the miner should place, load, drill, tamp, and fire shots at his working place in the mine, nor was a certified miner instructed how to place his shots, drill his holes, make his cartridges, tamp the cartridges, place the fuse or squib and light and fire the same, and the offered evidence was rejected. The custom and practice, although universal and well known, could not affect the positive provisions of the statute or relieve the defendants of a statutory duty, but were admissible under the common counts on the issue of negligence of the defendants. If it was a general, uniform, and well-known custom not to give further instruction to a certified miner, the custom was not obviously unreasonable or dangerous, and the evidence was admissible under the common-law counts. St. Louis Nat. Stockyards v. Godfrey, 198 Ill. 288, 65 N. E. 90;Donk Bros. Coal Co. v. Thil, 228 Ill. 233, 81 N. E. 857; 29 Cyc. 609.

Anton Foucheck, buddy of the plaintiff, and working with him at the time of the injury, was a witness for the defendants, and his account of the occurrence was different from that of the plaintiff. He had worked in the mine for 15 years, and had brought a suit against the corporation which was settled during the trial of this case, and he received payment of the amount agreed upon. On cross-examination he was asked if he had not made certain charges in his declaration to which his attention...