delivered the opinion of the court:
The proof shows that the defendant in error was a coal miner, forty-nine years of age, and was employed at the time of the accident, and for several months theretofore, in plaintiff in error’s mine; that the coal was mined by being cut loose with a machine and then shot down, usually with three shots, the one in the center being called the “breakdоwn shot;” that the evening before the injury defendant in error, with the assistance of his son, who was working with him, fired three shots but could not see the condition of the roof on account of the smoke; that on going to work the next morning he found the shots had knocked the coal down on the right and left sides, but that part of the center shot was still standing against the roof and а piece of loose slate or rock was projecting about three and a half feet; that during the afternoon, after trying, without success, to pull the slate down, he started to mine down the coal which had been left standing, but struck only once with his pick when the piece of slate loosened, swung around, fell on his leg and broke it; that he was otherwise bruised and injured, and had been able to work only about two weeks from the time of the accident to the time of the trial, some thirteen months.
Plaintiff in error does not contend that the proof was insufficient to permit recovery under the first count, in so far as relates to the defendant in error not being furnished with props and cap-pieces as he requested. That question being controverted, it is admitted that the judgment of the Appellate .Court affirming the findings of the trial court is conclusive on this court.
Plaintiff in error does contend, however, that the proof shows that the proximate cause of the injury was not the willful violation of the Mining act by plaintiff in error, but the fact that defendant in error willfully, intentionаlly and deliberately struck his pick into the coal knowing its condition, and that hence no recovery can be had. It cannot be argued from this record that defendant in errоr struck his pick into this coal with the intention of pulling it down upon himself and breaking his leg. The argument of counsel for plaintiff in error is plainly an attempt to avoid the conclusions necessarily drawn from the former decisions of this court in construing the act here under consideration, as to contributory negligence. Such negligence by the injured person is nо defense to an action based upon the mine owner’s willful failure to carry out the provisions of said act. (Kellyville Coal Co. v. Strine,
The further argument is made that the fourth count did not state a good cause оf action. Counsel for plaintiff in error contend that in order to recover under paragraph (&) of said section 18 of the Mines and Miners act it was necessary for defеndant in error to allege and prove that the plaintiff in error had discovered the dangerous conditions complained of. Such is not the law. This court, in discussing this section of the statute in .Mertens v. Southern Coal Co. supra, said (p. 544) : “We think the jury were justified in finding, from the evidence, that the roof of the mine was in a dangerous condition on the morning of the 20th, and that if the mine examiner of the appellant had made a proper examination to ascertain the condition of the roof he would have discovered its dangerous condition, and that from such evidence they were justified in concluding that the mine examiner did not examine the room on that morning, or that if he did examine it he discovered its cоndition and failed to comply with the statute by indicating,, by proper marks, its dangerous condition and noting the same in his record and reporting the same to the mine manager.” Manifеstly, the operators of mines are liable, under this provision of the statute, not only when the dangerous conditions have been discovered by them, but also if, by the exercise оf the care required by the provisions of the act, they could have discovered the existence of such conditions. The argument of plaintiff in error would allow mine operators to relieve themselves from all obligation under these provisions of the Mining act by simply neglecting, intentionally or otherwise, to make the daily examination prоvided for therein.
It is argued that this fourth count did not charge that plaintiff in error knew of the dangerous condition. The count charges that plaintiff in error willfully permitted defendant in error to enter said working place. The word “willfully” is synonymous with “knowingly.” The two words are equivalents. (Peterson v. Pusey,
Objection is made by plaintiff in error to the giving of the twenty-first instruction for defendant in error. This instruction is substantially the same as instruction i in Illinois Central Railroad Co. v. Cole,
Plaintiff in error argues that certain instructions given for the defendant in error were argumentative, that othеrs called attention to particular evidence, and that still others were objectionable because they assumed certain facts. We agree with the Appеllate Court that most of these objections do not appear to be well founded, and none of them are of so serious a nature as to justify a reversal. We think the plaintiff in error is without just cause for complaint on the question of instructions, as the twenty-eight given for it by the court fully covered the law applicable to its theory of the cаse.
Plaintiff in error further complains that the trial court improperly permitted defendant in error’s counsel to ask leading questions of his witnesses. A question is leading when it indicates to the witness the real or supposed fact which the examiner expects and desires to have confirmed by the answer. (2 Elliott on Evidence, sec. 836.) Defendant in error cоntends that in many of these questions objected to, the examiner avoided the grounds for objection by using the tenn “whether or not.” This does not necessarily keep the question frоm being leading, as it still may suggest to the witness the answer desired. (2 Elliott on Evidence, sec. 837.) In Daugherty v. Heckard,
Plaintiff in error further insists that the court erred in its ruling as to a certain question asked of one of its witnesses, and the answer theretо. The question was double in its nature, and it is apparent from the record that the part of the question that counsel desired answered was afterward asked and answered, so that no harm was done by the ruling.
We find no reversible error in the record, and the judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.