149 Ill. App. 10 | Ill. App. Ct. | 1908
delivered the opinion of the court.
In order to make her case it was necessary for plaintiff to prove not only that said door sill and the depression on either side thereof made by the feet of the mules constituted a dangerous condition within the meaning of the statute concerning mines, but also that Hamilton was caught upon said sill and thereby caused to stumble and fall under the first car. We have carefully read from the record the evidence of each witness who saw Hamilton, either before or after his injury, and we are unable to find any proof from which the jury could reasonably determine that Hamilton caught his foot either in the depression next to the door sill or upon the sill itself. McDonald saw him make a motion as if to" step upon the bumper and take hold of the box, and heard him say “all right” at the same instant, and McDonald then turned away and started his team. When the car had gone a few feet, he heard Hamilton call out “Whoa,” and stopped the team as soon as he could, with the aid of the trapper stopping the head mule. No one else saw any part of the accident. McDonald found that Hamilton was under the car and sent for help, and several men came and assisted in taking him out. It is clear that the distance from center to center of the two door frames was six feet. One witness said it was five feet eight inches between the door frames, but he doubtless meant “in the clear.” Another witness said it was two feet but he afterwards changed it to six. The others said they were six feet apart. The car was seven feet long. It had passed nearly through the outer frame before it stopped. Hamilton’s head and shoulders were under the front of that car. One witness said that his head was about ten feet from the door. This is omitted from the abstract. Another testified that the distance from the front of the car as it stood to the door was about ten feet and a half or eleven feet. The proof showed that one of his feet was bent and that the sole of the shoe on that foot was broken. The wheels of the front car were off the track and it may be that one of those wheels ran over Hamilton’s foot and that the car was thereby thrown off the track. While some testimony of one witness places Hamilton’s head nearer the door than above stated, yet what we have given is the clear preponderance of the evidence. No one saw his foot near the sill or near the depressions, whatever they were, on either side thereof. No one saw any mark on the sill or on the ground indicating that Hamilton’s foot had been caught or dragged there. It may be that his foot was caught on that sill and he was thereby thrown from the car. It may be he made some misstep in attempting to get upon the car or that he failed to get a firm hold of the box and slipped off the chain after the team started. There is no proof that he was higher than any ordinary man and the position of his head ten or eleven feet from the sill tends to indicate that when he fell he was some four or five feet beyond the door. It is to be presumed that he called out the instant he lost his balance or fell. The accident was a deplorable one, but we find nothing in the evidence from which the jury could decide what caused it. We do not think the jury could be permitted to say that, because it was possible that he caught his foot on that sill and was dragged that distance, therefore they would find that such was the manner in which he was injured. If any inference is to be drawn from what McDonald saw it would be that Hamilton took hold of the top of the box, stepped upon the bumper with one foot, and undertook to ride the chain with the other, and that in some unknown way he slipped and fell and went under the car. This would not warrant a verdict for plaintiff under this declaration. We are therefore of opinion that if a verdict for plaintiff had been returned, it must have been set aside for want df proof of the essential allegation that Hamilton was caught upon the obstruction caused by the sill and depressions on each side thereof, and thereby was caused to stumble and fall under the car. If, therefore, the court erred as alleged in rulings in admitting evidence for defendant and in giving instructions for defendant, still the judgment should not on that account be reversed, inasmuch as plaintiff did not make a prima facie case.
Defendant was permitted to prove by qualified experts in mining matters that the conditions and surroundings existing at this trap door were safe. It is urged that this was erroneous. We consider that the rulings of the court in that respect are substantially sustained by Donk Bros. Coal Co. v. Stroff, 200 Ill. 483; Henrietta Coal Co. v. Campbell, 211 Ill. 216, 227, and Kellyville Coal Co. v. Strine, 217 Ill. 516. The ground upon which this evidence is permitted is that ordinary jurymen are not familiar with matters pertaining to the proper operation of coal mines, and that the conditions existing in such a place are not a matter of common knowledge or information.
Defendant was permitted to show that this trap door was constructed and its sill maintained in the method usually adopted in other like mines, and the jury were instructed that if said sill was constructed in the manner in which such doors with sills used for that purpose in coal mines are usually and ordinarily constructed in coal mines by men of ordinary care and caution, then such sill did not constitute a dangerous condition under the law. A distinction, we think, should be drawn between cases where the mine owner has failed to do some specific thing required by statute, and where the alleged dangerous condition is in a matter not specifically prescribed by statute. Where the -statute has directed a fence to be built around the top of the mine, or a light to be displayed at the bottom of the mine, or the roadways to be sprinkled when the air in the mine is charged with dust, the operator is not permitted to say, in defense to an action for an injury caused by a failure to comply with such requirements, that he did some other thing which he thought was a sufficient protection of the men in his employ. But the statute contains no directions as to how the sill or the trap door shall be built or how the roadway shall be fitted for travel except that the operator must guard against dangerous conditions. If, therefore, in such a matter, the mine examiner has made an examination as required by statute, and has honestly decided that the conditions are safe, and has so reported, and if the mine manager so believes, and if the conditions are those which prudent mine managers consider safe in their mines, then, though the jury might decide that they were mistaken and that the conditions were in fact dangerous, it is difficult to see how they could decide that the operator had wilfully permitted dangerous conditions to exist. It is a wilful violation of the statute that is charged in this declaration. A wilful violation of the statute is a conscious violation. El Dorado Coal Co. v. Swan, 227 Ill. 586, 591. It therefore seems to us that the rulings upon evidence and instructions of which complaint is made were in the main correct. Perhaps instruction number 28b is inaccurate in not including specifically the knowledge of the mine examiner, but that defect is sufficiently cured by other instructions given, such as Nos. 33, 34 and 35. We do not approve of the allusions in certain instructions to want of care on the part of Hamilton and to the hazard of the business, as those matters are not material in an action for the wilful violation of the statute. Kellyville Coal Co. v. Strine, supra. Yet each of these instructions, as given, correctly stated the law, and the allusions did not constitute reversible error. Some other instructions were given which were of doubtful propriety, but we do not think they should reverse a verdict which was required by the condition of the evidence upon the question of how Hamilton’s death was caused.
The judgment is therefore affirmed.
Affirmed.
Hpon a petition for rehearing appellant insists that there is more evidence in the record from which an inference may be drawn that the feet of deceased were caught upon the sill of the door, than is stated in the foregoing opinion. If that be so, still the question whether his death was caused in the manner charged in the declaration was a question of fact for the jury. The jury decided that question against appellant and the trial judge approved the verdict. There seems to us a clear preponderance of proof in support of the verdict, and certainly the state of proof would not warrant us in saying that the jury should have found for appellant. We have considered the other points made in the petition for a rehearing and do not find that they show reversible error in the record. The petition for a rehearing is denied.
