| Ill. | Jun 23, 1904
delivered the opinion of the court:
Counsel for appellant first contend that “the evidence does not support the verdict and the verdict should have been for the defendant,” because the evidence does not show defendant to have been negligent and does show appellee to have been lacking in due care. The affirmance by the Appellate Court of the judgment of the trial court in this case conclusively settles all questions of fact, except in so far as it may be necessary to consider the evidence in disposing of appellant’s charge that the testimony does not sustain the verdict.
As bearing upon the points raised and alluded to, the evidence shows that the main south entry of appellant’s mine had caved in about a year prior to the accident in question, so that such entry was, partly at least, abandoned, and a cross-cut was constructed around this cave-in to connect with the back south entry. There is no question but that appellant owed to appellee, and all its servants required to pass along this cross-cut or roadway, a legal duty to maintain the same in a reasonably safe condition. Recognizing this obligation, the evidence shows some effort on the part of appellant to discharge the duty, and some two months before the accident it appears employees of appellant were sent into this entry to clean it up; and concerning which, one of them, D. T. Williams, testified as previously set out in the statement of this case. Concerning this roadway, William Dwire, another witness, testified that there was dirt piled up from the face of the coal; that it sloped down from the rib to the rail, and that there was nowhere to get out of the way; that he went along the place where plaintiff was hurt, about half-past three in the afternoon, and that at that time the box was still standing there. “We had to brace ourselves to get around the box. I cannot say how far it extended. It was about two feet high. The rib was on one side and the gob on the other.” On this point William H. Evans, another witness, testified: “I know the place where plaintiff was hurt. The gob was on the right-hand side going out. The pillar where the old entry wasn’t worked fell in and the gob slipped down. The rock broke and slipped to the road. We had to put the left hand on the car there going out and guide ourselves with the right hand to get around the car to get on the track again. Mr. Campbell’s car was standing in the entry when we came out. The first I learned that Mr. Campbell was hurt was when we came on top. The conditions I spoke of existed for about sixteen feet around the turn. I can’t tell you the size of the rock. The rock had been there ever since I began working, in September.” John Slave, another witness, testified: “I was working in the mine at the time plaintiff was hurt. Coming out I saw the box of coal that Mr. Campbell was driving, standing there. I knew the place since September before Mr. Campbell was hurt. There was lots of dirt there in the entry.” John Micko testified: “I was working in this mine when plaintiff was hurt. I didn’t notice the place much where Mr. Campbell was hurt, but there was gob along there. I know we had to crawl over it. We had to put our hand on the box to get by. I don’t remember how close the track was to the gob. I came around there after Mr. Campbell was hurt. I had to put my hands on the box to get around.”
One of the charges of the declaration was that the defendant failed to provide a reasonably safe track and roadway in which plaintiff might perform his work as driver. With such evidence in the record as the above as to the condition of this roadway, and considering the character of the mule appellee had to drive along it, requiring vigilance on the driver’s part to keep the mule from balking and kicking, which it was inclined to do when any impediment of even the most trivial nature was encountered by the cars, making them pull harder, "we. would not be warranted in setting aside this judgment on the ground that there is not sufficient evidence to sustain the allegation that appellant failed to provide for appellee a safe and suitable roadway.
Appellant also charges appellee with contributory negligence, with knowledge of all the conditions concerning his employment, and therefore of an assumption of all the risks involved. The evidence shows that appellee was requested on Saturday before the accident, which occurred on Wednesday, by the superintendent and manag'er of the appellant, to take the mule in question and drive, hauling- coal along the roadway or entry spoken of. Appellee replied that he did not wish to be contrary and would take the mule and try him. This mule, the evidence conclusively shows, had a notorious reputation. When overloaded it would balk and on the slightest provocation it was known to kick. Appellee says that he took the mule on Monday and drove him that day and part of Tuesday, when he asked to be relieved of driving him. The manager said: “You go ahead and drive him; I want you to drive him.” Appellee replied that he was afraid of the mule and did not want to drive him; that the mule was kicking all the time and cutting up, and that he couldn’t do anything with him, and every time he came to the low place where there was a rock next to the east entry he would kick, and that once he had kicked himself loose and went to the bottom kicking, hitting the top and bottom all the way out, and still, he said, the manager told him to “go ahead and drive him.” Appellee further said the manager had a conversation with him on Tuesday evening, and told him to drive the mule with a line that he fixed for him and the mule would be all right, and he went with him and showed him how he meant, and also called him “a damn fool” for not wanting to drive the mule.
As before stated, at the time of the accident appellee was going around a turn in the entry with a load of coal. The dirt had accumulated on the track or roadway so much that it was in bad shape and the cars would not “go through easy.” Appellee started to “sine” or pull the box of coal to one side to keep it from catching the rib or side of the entry. Perceiving a chunk or clod of some kind on the rail, he reached down to remove it so as to prevent it stopping the car, one hand being on the car and the other on the tail-chain. At this point the mule began kicking, and appellee, endeavoring to save himself, tried to step to one side, but because of the rock already spoken of there was not sufficient space, and the axle of the. car caught his foot against the rock. Under such circumstances we cannot sustain the contention of appellant that appellee was so guilty of contributory negligence or had so assumed all the risks of his employment as to require a judgment, entered on a verdict of a jury in appellee’s behalf, to be set aside because of insufficient evidence to support it..
Suppose it be conceded that appellee knew of the mule’s propensity to kick. Only a short time before this accident, after having asked to be relieved of driving the mule, appellant’s foreman or manager had told him, “I want you to drive the mule,” and “You are a damn fool for not wanting to drive him.” Then the foreman had taken a rope and tied it to the mule’s halter and directed appellee that bsr using this line he could manage the mule all right, and the inference is justifiably to be drawn from the evidence that appellee was honestly trying to carry out these orders and testing the plan suggested by his superior. Even though it be conceded that appellee was well acquainted with the condition of the roadway over which he drove, (and this assumption by no means necessarily follows from the evidence, considering the character of the mule appellee was driving and the natural presumption that his attention was necessarily directed to the mule rather than the roadway,) and thereby assumed the. dangers incident to its contracted condition,' yet this would not entail upon him the risks of unusual or new danger's, or even dangers naturally incident to such existing conditions, unless it be shown that appellee was cognizant of such dangers. It seems that at least one of the elements leading to the accident was the chunk or clod lying upon the rail. Appellee knew the propensity of the mule to balk and kick and judged that if this obstruction was not removed he would have trouble. He apparently was doing the best he could to avert such threatened danger and thereby occasioned another. The evidence shows that the gob and refuse were permitted to so accumulate along the side of this track that it was easy.-for impediments to roll upon the rails, which it was appellant’s duty to keep clear and which it was appellee’s right to assume would be done.
It is said that appellee was negligent in not using a seat on which to ride, instead of walking, the company having provided seats for such purpose; but it is shown that when the superintendent instructed appellee how to drive the mule with a line, so as to avoid danger, he did not use the seat, and, so far as can be determined by the evidence, appellee was following the example set him.
The jury specially found in this case that appellee did not “of his own will continue to drive the mule in this entry,” and that he did not “continue voluntarily to work for defendant.” It is evident from these findings that the jury determined,—and there is evidence to justify such determination,—that the appellee was working pursuant to a special command of the master, and unless it can be said (which we deem it cannot be, in this case, and the jury did not so find,) that appellee acted as no reasonably prudent person would act under like circumstances, he did not assume the risks involved in carrying out, or attempting to carry out, such direct command. Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573" date_filed="1894-01-16" court="Ill." case_name="Chicago Anderson Pressed Brick Co. v. Sobkowiak">148 Ill. 573; Illinois Steel Co. v. Schymanowski, 162 id. 447; Western Stone Co. v. Muscial, 196 id. 382; Illinois Steel Co. v. Ryska, 200 id. 280; Hartrich v. Hawes, 202 id. 334; Offutt v. World's Columbian Exposition, 175 id. 472; Slack v. Harris, 200 id. 96.
Appellant contends that inasmuch as the jury found by the first special finding that the plaintiff knew that at the point of the injury the gob and stone were close to the track, thus, as is contended, showing that he had complete knowledge of the conditions of the roadway at the place of the injury, it follows there could be no recovery under the first and second counts of the declaration. In our judgment such deduction does not follow, as is manifest from the preceding; nor do we regard such finding inconsistent with the general verdict.
It is insisted by appellant that inasmuch as the declaration did not aver a specific order or direction of appellant to appellee, it was therefore error to permit the introduction of evidence tending to show the same. The declaration does allege, however, that the appellee was in the exercise of due care for his own safety, and we perceive no error in permitting proof of all the circumstances tending to support that allegation, and it was competent, under that allegation, for the appellee to show, if he could, that he was ordered or directed to do the work he was attempting to do and in the manner in which he was endeavoring to do it, and then it was for the jury to say whether, under such circumstances, appellee acted recklessly or otherwise.
Certain questions were asked expert miners as to whether, in their judgment, certain conditions as to the roadway rendered it safe or otherwise, and it is claimed this was error, as the subject was one within the common observation of all men. We cannot say such was the case. The roadways and entries of a mine and their adaptability to the use intended are not matters of common knowledge, and we perceive no error in admitting the character of evidence here objected to. Donk Bros. Coal and Coke Co. v. Stroff, 200 Ill. 483" date_filed="1902-12-16" court="Ill." case_name="Donk Bros. Coal & Coke Co. v. Stroff">200 Ill. 483.
The conduct of counsel for the appellee in offering to prove certain matters after objections to interrogatories relative thereto had been sustained is also complained of. The offer to prove the matters referred to, after the objection had been sustained, was proper, and if the offer was of such a character as might be calculated to mislead or prejudice the jury, it would have been proper to have had the jury withdrawn until the offer was made. This, as also the conduct of counsel, was within the control of the trial judge, and such matters must very largely be left to his discretion, and while, as held in the case cited by appellant, (North Chicago Street Railway Co. v. Cotton, 140 Ill. 486" date_filed="1892-01-18" court="Ill." case_name="North Chicago Street Railway Co. v. Cotton">140 Ill. 486,) in clear cases this court will reverse a case because of the improper conduct of counsel in the presence of the jury, we there also said (p. 503): “This is always done with hesitation and reluctance, the court indulging, as it has a right to, in the presumption that the trial judge has performed his duty in restraining improper conduct on the part of counsel and in preventing remarks to the jury not justified by the occasion.”
Other objections are made as to questions asked with reference to the conduct and character of the mule driven by the appellee, not confined to the particular time of the accident, and as to dirt on the roadway, when, it is claimed, there was no averment in the declaration that the roadway was dirty. We perceive no error in this respect and regard the objection without merit.
After a careful review of this case we are satisfied that there is such evidence in the record as justified the court in submitting the case to the jury and that the evidence is sufficient to support the verdict. We find that no material error intervened in the trial of the cause, and the judgment of the Appellate Court will be affirmed.
Judgment affirmed.