236 Ill. 502 | Ill. | 1908
delivered the opinion of the court:
The appellant contends that the court erred in declining, upon its motion, to withdraw the common law counts of the declaration from the jury, on the ground that there was no evidence which would support a recovery thereon. We do not think the court committed reversible error in overruling said motion as there was evidence tending to support the other count of the declaration, and it clearly appears from the record that there was evidence tending to support the common law counts in the declaration, and it is settled in. this Staté' that one good count in a declaration which is supported by the evidence will sustain a verdict and judgment although other counts in the declaration may not be supported by the evidence. Consolidated Coal Co. v. Scheiber, 167 Ill. 539; Illinois Central Railroad Co. v. Weiland, 179 id. 609; Swift & Co. v. Rutkowski, 182 id. 18; Eldorado Coal and Coke Co. v. Swan, 227 id. 586.
It is also contended that the court erred in overruling appellant’s motion for a directed verdict, as it is said that the evidence does not show a willful violation of the provisions of section 18 of the Mines and Mining act, the position of appellant being, that the only evidence of a willful violation of said section 18 contemplated by the statute is the report of the mine examiner,—in other words, that the suit being based upon a violation of section 18 of the Mines and Mining act, actual notice of the dangerous condition in the mine to its mine examiner was not sufficient notice of such condition to appellant to make it liable under that section of the statute for an injury resulting from such dangerous condition. We do not agree with this contention. The statute clearly contemplates that the mine owner shall keep his mine in a safe condition to protect the men employed by him therein from injury, and to this end it is provided that a mine examiner and a mine manager shall be employed, and that the mine shall be examined and reports of its condition as disclosed by such examination made, and that a willful failure to make such examination or report, which results in injury to men working in the mine, shall make the mine owner liable for such injury. It is not, however, contemplated by the statute that the mine owner shall be relieved of liability for an injury resulting to men working in his mine, in consequence of a dangerous condition in the mine of which he has actual notice, by reason of the fact that he has not received notice of such condition through the channel of the report of his mine examiner. A mine examiner is a vice-principal of the mine owner, (Davis v. Illinois Collieries Co. 232 Ill. 284,) and actual notice to the mine examiner or the mine manager of a dangerous condition in the mine is notice to the mine owner of such condition. In this case the evidence tends to show that the mine examiner of appellant was in the mine the night before the appellee was injured and saw the condition of the debris upon the gob side of the entry at the point where appellee was injured; that, regardless of his knowledge of such condition, the appellant permitted the appellee, without being under the direction of its mine manager, to go into the mine on the following morning to work without removing said debris, the result of which was that while the appellee was passing through the entry in which such dangerous condition existed, with his car, he was injured.
The evidence was conflicting as to the condition of the debris upon the gob side of the entry, where the accident occurred. The evidence of the appellee tended to show it was piled near the track to a height of from eighteen inches to three feet, which made it very dangerous to persons similarly situated to appellee at the time he was injured; while the evidence of the appellant tended to show the entry at the point of the injury was in a safe condition. The question of the condition of the entry at the point where the accident occurred was one of fact to be determined by the jury, and not by the mine examiner. The mine examiner had no power to adjudicate the question of the safety of the entry at that point, (Davis v. Illinois Collieries Co. supra,) and if the appellant permitted the appellee to enter the mine to work therein, otherwise than under the direction of its mine manager, knowing of said dangerous condition, before said dangerous condition had been made safe, such conduct on its part constituted upon the part of the appellant a conscious violation of section 18 of the Mines and Mining act and rendered the appellant liable to the appellee for a willful violation of said act. Odin Coal Co. v. Denman, 185 Ill. 413; Marquette Coal Co. v. Dielie, 208 id. 116; Kellyville Coal Co. v. Strine, 217 id. 516; Henrietta Coal Co. v. Martin, 221 id. 460; Eldorado Coal Co. v. Swan, supra.
Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.
Judgment affirmed.
