text:
    Mary Farley, Appellee, v. Wabash Railroad Company, Appellant.
    Gen. No. 5206.
    1. Negligence—when declaration states cause of action. A declaration states a cause of action which charges negligence generally in carelessly and improperly driving and managing a locomotive engine, etc.
    2. Negligence—competency of proof showing failure to ring bell or blow whistle. Notwithstanding the negligence relied upon was not a failure to observe the statute requiring the ringing of a hell or the sounding of a whistle at street crossings, the fact that the hell was not rung or the whistle was not blown at the place of the injury in question, is competent as bearing upon the question of the exercise of due care by the plaintiff.
    3. Pleading—what defect in declaration cured by verdict. The fact that the allegations of the declaration confine the exercise of due care by the plaintiff to the precise time of the accident in question, is not material after verdict.
    4. Evidence—when remarles of husband to wife at time of ccctdent competent; when not. What the husband of the plaintiff said at the time of an accident is competent so far as responded to by the plaintiff but what he may have said at such time to the plaintiff is not competent if no response thereto was made.
    5. Instructions—must be clear. An instruction confused and ambiguous in form and which states a mere abstract proposition of law, should be refused.
    Action in case for personal injuries. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge; presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Rehearing denied April 6, 1910.
    R. S. McIlduff and B. R. Thompson, for appellant; James L. Minnis, of counsel.

      White & Tuesburg and William Wilson, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On March 12, 1906, Mrs. Mary Parley was driving east on an east and west highway about half way between the villages of Emmington and Campus in Livingston county, and was driving across the Wabash Railroad tracks, which intersect the highway there from the southwest to northeast at an angle of 45°. It was storming and the wind was blowing strongly from the north. A freight train drawn by two engines, coming from the southwest,' struck the hind part of one of the hind wheels of the buggy in which Mrs. Parley was riding and threw the buggy and Mrs. Farley and a little girl riding with her some distance and inflicted injuries upon Mrs. Parley, to recover damages for which she brought this suit. The declaration contained a single count which, after describing the highway and plaintiff’s conveyance and the railroad and its engines and train of cars, operated by its servants driving towards said crossing, proceeded as follows: “And while the plaintiff, with all due care and diligence, was then and there riding in said buggy, across the said railroad at the said crossing upon the said public highway there, the defendant then and there by its said servants, so carelessly and improperly drove and managed the said locomotive engine or engines and train that by and through the negligence and improper conduct of the defendant by its said servants in that behalf, the said locomotive engine or engines, and train, then and there ran and struck with great force and violence upon and against the said buggy, and thereby the said plaintiff was then and there thrown with great force and violence, from and out of the said buggy, to and upon the ground there, and was thereby then and there greatly bruised,” etc. Defendant pleaded not guilty and there was a jury trial and a verdict- for plaintiff for $750 from which defendant prosecutes this appeal.

It is contended that the declaration does not state a cause of action. This form of declaration has been often approved in this state, from Chicago City Ry. Co. v. Jennings, 157 Ill. 274, to Chicago City Ry. Co. v. Pural, 224 Ill. 324. These and kindred decisions are all founded on a number of forms given by that fountain-head of correct common law pleading, Chitty, in 2 Chitty’s Pl. 708 to 715. It is further contended that the language of this declaration confines plaintiff’s exercise of due care to the exact instant when she was upon the rails of the railroad track and confines the charge of negligence against defendant to the same instant of time and to the same exact place, and that plaintiff should have averred that she exercised due care as she approached the railroad and should have averred that defendant was negligent as its train approached said highway crossing. It is to be noted that this contention is made after verdict, when many imperfections are treated as cured, under the principle quoted from Chitty’s Pleading in Gerke v. Fancher, 158 Ill. 375, and many other decisions in this State, as follows: “Where there is any defect, imperfection or omission in any pleading, whether in substance or in form, which would have been fatal objections upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or that the jury would have given the verdict, such defect, imperfection or omission is cured by verdict.” Under this rule, it has been held that failure to make the necessary averment that defendant had notice of the defect is cured after verdict. City of East Dubuque v. Burhyte, 74 Ill. App. 99, 173 Ill. 553; C. & E. I. R. R. Co. v. Pittman, 231 Ill. 581; Boyce v. Tallerrnan, 183 Ill. 115; Sargent Co. v. Baublis, 215 Ill. 428. The case last cited holds that the failure to allege in what respect defendant is negligent is-cured by verdict. In Chicago Genl. Ry. Co. v. Carroll, 189 Ill. 273, the original declaration was like the declara-, tion in this case. Afterwards, additional counts were filed, charging excessive speed and also knowledge in the defendant. It was held that the matters charged in the additional counts could have been proven under the original declaration. In the case before ns plaintiff did not confine her proof of the care she exercised to the instant when she went upon the crossing, but introduced proof of her efforts to ascertain whether any train was approaching when she was a considerable distance from the crossing. She did not confine her proof of negligence by the defendant to the instant when the train reached the crossing, but called a number of witnesses whose testimony tended to show that no bell was rung or whistle sounded as defendant’s train approached the crossing. The instructions given at her request did not confine the inquiries as to due care and negligence to the instant of the collision upon the crossing, but related to the situation and conduct of both parties as described by the evidence at the time of and prior to the injury, and required of plaintiff the exercise of ordinary care for her own safety at the time of and prior to the injury. We are of opinion therefore that, after verdict, it is not to be held that this declaration should be construed to charge only that plaintiff exercised due care when she was on the railroad track and that defendant was negligent at the instant that it drove its train upon the highway crossing, but that the words,“then and there” in the portion of the declaration quoted should be treated as having as extensive a meaning as the evidence introduced in its support. We treat the declaration as charging that plaintiff exercised due care as she approached and went upon the crossing, and that defendant was negligent as it drove its train towards and upon the crossing.

Plaintiff introduced evidence tending to show that no bell was rung or whistle sounded as this train approacked the crossing. The ringing of a hell or sounding of a whistle at a certain distance from a public highway crossing is required by statute and a violation of this statute was not in terms alleged in the declaration, and it was said in Chicago City Ry. Co. v. Jennings, supra, arguendo, that a violation of that statute must be specially averred in the declaration in order to authorize a recovery for such violation. It is not necessary to decide whether the rule in this state is as stated in that case by way of argument and illustration, for it is competent to prove that a bell was not rung or a whistle sounded at a place where the statute did not require it (I. C. R. R. Co. v. Aland, 192 Ill. 37; Reidel v. C. R. I. & P. Ry. Co., 144 Ill. App. 424), for its bearing upon the question whether plaintiff was exercising due care as she approached the crossing. If the whistle was not sounded and the bell was not rung, then these elements did not exist to attract the attention of an ordinarily prudent person or of plaintiff.

It is contended that plaintiff was not exercising due care as she approached the crossing. It was cold and storming, and a high wind was blowing from the north towards the approaching train. The train came through a cut in the earth about ninety rods from the highway. As its direction was from due southwest to due northeast, the train in a sense approached the plaintiff from behind. It was running at a speed variously estimated at from thirty to fifty miles per hour, and slightly down grade after it left the cut. Plaintiff testified that twice before she reached the crossing, the first time a considerable distance therefrom, she leaned forward and looked back up the track around the curtains of the buggy, which were down, and did not see the train. As she drove upon the tracks she looked again and discovered the train just upon her. No other witness testified to seeing her make these observations. The trainmen swore that the whistle was sounded at the regular distance from the crossing, and that the fireman then started the bell to ringing. This was an antomatie bell, but that fact does not aid defendant, since it is conceded that it was not kept ringing as they passed through the country, but was started when they approached a crossing, so that the question whether it was operated at this time depended upon human memory and human agency and not upon the faithfulness of the automatic mechanism. These trainmen had left Decatur with that train about six or seven o’clock that morning and they reached this crossing at about half past five o’clock in the afternoon, and may very well have been tired and not as closely attentive to their duties as earlier in the day. They were all employes of the defendant and subject to serious criticism if they failed to give the statutory signals. On the other hand, not only did plaintiff testify that she heard no bell or whistle, but she was also corroborated by a number of other persons, several of whom were not shown to be in any way in her interest except as neighbors. A man standing on the platform of a windmill, forty feet above the ground, testified that he saw this train approaching and heard no whistle or bell. A woman who was east of the crossing and walking towards it, saw plaintiff in the buggy and saw the approaching train and heard no whistle or bell. A woman located upon a porch facing that situation, gave like testimony. Two women, standing at the west window of a house east of the crossing, were looking directly at the buggy and the train and feared that the buggy would be struck by the train. One of them was the daughter of plaintiff and the other the mother of the little girl who was in the buggy with plaintiff. v They testified that they heard no bell or whistle. All of these witnesses and some others were looking at this train and this buggy. Some of them were, we think, properly permitted, after stating their location and their previous experience in noticing and hearing railroad bells and whistles, to testify that if a bell had been rung or a whistle sounded, they would have heard it, in their judgment. Upon this state of the evidence, the jury have in effect found that plaintiff was in the exercise of due care, and the trial judge has approved that finding. We regard this as the difficult question in the case. If the jury had found that plaintiff was not in the exercise of due care and the trial judge had approved that finding, this court could not reasonably have disturbed it, but we are also of the opinion that, under this conflicting testimony, a verdict either way as to plaintiff’s care, approved by the trial judge, could not be disturbed here on the ground that it is not supported by the evidence.

It is contended that the proof did not justify a finding that the defendant was negligent. The instructions given at plaintiff’s request on this subject were not based upon a violation of the statutory duty but submitted to the jury the question whether defendant had exercised ordinary care to give reasonable warning to any one approaching said railway crossing for the apparent purpose of crossing over the tracks. As already said, the evidence was very conflicting upon the question whether any warning was given of the approach of the train to this highway crossing. The evidence was conflicting as to whether its speed was thirty or fifty miles per hour. The train came through a partial cut at an angle of 45° to the highway and with the wind blowing strongly against the train, so that the noise of its motion might not be heard. All these were conditions of which defendant’s servants were necessarily cognizant. If the whistle was sounded eighty rods or more beyond the crossing and then the bell was kept continuously ringing till the crossing was reached, defendant could not reasonably be found guilty of negligence. If, however, this train approached that crossing at that angle against a strong wind and gave no signals, the jury were warranted in finding that defendant had not exercised reasonable care to give warning of the approaching train. The jury and the trial judge saw all the witnesses and heard them testify and believed those for the plaintiff. Plaintiff had quite as many witnesses on this subject as defendant. We would not be warranted in disturbing the verdict on this subject.

Defendant sought to prove certain remarks made by the husband of plaintiff after he reached the wreck of the buggy, and this evidence was not permitted. The court permitted that which the husband . said where plaintiff made a response, but as to the matter which defendant deemed material the witnesses were unable to say, on an examination in the absence of the jury, whether plaintiff made any reply and, if so, what she said. We think this ruling correct. Plaintiff’s husband could not make testimony against his wife by any reference to past events, but if plaintiff made any answer thereto, or by silence admitted anything material, then the whole conversation would have been competent.

The court gave thirty-two instructions for defendant without modification, and modified and gave five other instructions for defendant, so that almost every possible phase of the law upon which defendant was entitled to instructions was covered by those which were given. The court refused six instructions requested by defendant. In the main they are covered by those that were given. Complaint is made of the refusal of No. 37, upon the relative value of affirmative and negative evidence. It was confused and ambiguous and was a mere abstract proposition of law. It was therefore not error to refuse it. A. T. & S. F. R. R. Co. v. Feehan, 149 Ill. 202, 212.

The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    Michael H. Hussey, Appellee, v. John Gourley, Appellant.
    Gen. No. 5213.
    1. Judgments—when equity will not enjoin enforcement of. Equity will not enjoin the enforcement of a judgment at law, however defective or questionable the method by which it has been obtained, unless the party against whom the judgment was obtained had a valid and sufficient defense to the claim or demand so put in judgment.
    2. Judgments—when equity will not enjoin enforcement. Equity will not enjoin the enforcement of a judgment at law if the remedy by certiorari will afford the necessary relief sought.
    3. Pleading—how to he construed. The pleading of a party is to be construed most strongly against him.
    Bill for injunction. Appeal from the Circuit Court of Lake county; the Hon. Abthub H. Fbost, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    Rehearing denied April 13, 1910.
    Cooke, Pope & Pope, for appellant.
    Orvis & Beaubien, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On January 10, 1903, Helen M. Yeoman leased to Michael H. Hussey certain premises in Waukegan from January 1, 1903, to January 1, 1908, at a certain rental, with an option in said Hussey to extend said lease for five years at a certain increased rental, if said premises had not meantime been sold by Mrs. Yeoman and notice served upon Hussey as therein provided. The provisions as to notice followed, in these words:

“It is mutally agreed that if the said party of the first part shall sell said premises hereinbefore described, and shall desire to terminate this lease and prevent the said second party from exercising the option of the additional five years herein provided for, then the said party of the first part shall give or cause to be given to the said party of the second part, his executors, administrators, or assigns, a written notice of such fact on or before the first day of April A. D. 1907, which notice, if given, shall have the effect to terminate the option herein provided for the extension of this lease.”

Mrs. Yeoman sold and conveyed the premises to John Gourley. On April 20, 1908, after the expiration of the five years first named in the lease, Gourley filed a complaint against Hussey before a justice of the peace of the county, charging Hussey with a forcible detainer of said premises, and a summons for said defendant in an action of forcible detainer was issued, returnable April 25, 1908, at 9 a. m., and was duly served. There were successive continuances, and on May 9, 1908, defendant did not appear, and plaintiff took judgment. On May 16, 1908, no appeal having been taken, a writ of restitution was issued to the sheriff of the county. On May 20, 1908, Hussey filed a bill (with accompanying exhibits and affidavits) against Gourley and the sheriff, praying a temporary injunction against the enforcement of the writ of restitution, and that upon a hearing the injunction be made perpetual. A temporary injunction was issued. Defendants moved to dissolve the injunction on the face of the bill. This motion was denied. They then filed separate answers, and filed exhibits and affidavits therewith, and Gourley moved that the injunction be dissolved upon bill, answers and affidavits. Each party by leave of the court filed further affidavits. The motion to dissolve was” heard upon said pleadings and exhibits thereto and affidavits, and was denied. This is an appeal by Gourley from that order.

It was alleged as ground for the injunction that Gourley’s attorney had fraudulently taken judgment on May 9 in the absence of and without the knowledge of Hussey, in violation of an agreement between the attorneys for the parties that the cause should be continued till after Hay 18, and that knowledge of the judgment did not come to Hussey or his attorney till after the expiration of the five days allowed by law for an appeal in a forcible detainer case; and also that there were defects in the judgment docket of the justice as originally written, which had been since corrected without lawful authority. The affidavits upon these subjects were very conflicting. If the right to an injunction depended upon which affidavits should be believed, the court might well have refused to dissolve the injunction till the test of cross examination had been applied to the witnesses upon a final hearing.

But equity will not enjoin the enforcement of a judgment at law, however defective or questionable the method by which it has been obtained, unless the party against whom the judgment was obtained had a valid and sufficient defense to the claim or demand so put in judgment. It must be shown that there will be a different result upon another trial. The judgment assailed must be shown to be unjust. Reed v. New York Exchange Bank, 230 Ill. 50; Cadillac Automobile Co. v. Boynton, 142 Ill. App. 381, and 240 Ill. 171. It is therefore material to inquire whether this- record shows that Hussey had a valid defense to the action of forcible detainer brought against him by Gourley. The failure to give Hussey the notice as required in the lease was the defense alleged, and that he had thereafter exercised his option to renew the lease for another five years. On the subject of a lack of notice the bill contained two allegations. The lease was attached to the bill as Exhibit “A,” and the bill alleged: “Your orator further represents that he received no notice of any sale of the above described premises by his lessor or by any one else, as provided in and by the terms of the said lease and contract * * * on or previous to the 1st day of April, 1907.” If this had been the only allegation on that subject perhaps it would have been sufficient; but the bill further averred “that no notice for the possession or termination of the said lease or contract shown as Exhibit A hereto attached was ever served upon your orator by any officer or person authorized by law to serve the same.” These two allegations taken together are evasive, and when construed, as they must be, most 'strongly, against the pleader, must be held to mean that Hussey received no notice which in his opinion was such as was provided by the terms of the lease, but that a notice which he considered defective and insufficient had been served upon him, and that it had been served upon him by some person whom he considered without authority to serve it. The contract, Exhibit “A” to the bill, only required that Mrs. Yeoman should give or cause to be given written notice to Hussey on or before April 1, 1907, that she had sold the premises and desired to prevent Hussey from exercising his option to renew the lease for an additional five years. There was no requirement that it should be served by any particular officer or person. There was no law making such a requirement. If some notice had been given Hussey which he regarded as insufficient in form or substance, or if he considered that the manner of its service was not a compliance with the contract, then he should have stated the facts in his bill and set out the notice- which he did receive, so that the court could determine whether April 1, 1907, passed without his right to renew the lease having been terminated. The answer of Gfourley, after stating that he bought the premises of Mrs. Yeoman on January 22, 1906, and received from her a warranty deed of the premises which he caused to be recorded on January 31, 1906 (giving the book and page of the'record), and that Mrs. Yeoman at that time assigned said contract and lease to him, further alleged “that on or about the 30th day of March, 1907, and before the first day of April, 1907, the said defendant was notified of said sale in the way and manner provided in said lease and contract, to wit, by two different written notices served upon him by leaving copies thereof, one of said notices being signed by this defendant, a copy of which is hereto attached to this his answer and made a part thereof and marked Exhibit A, and the other of said notices being signed by the said Helen M. Yeoman, a copy of which is likewise attached hereto and made a part of this answer and marked Exhibit B.” Each of these notices, made a part of the answer, is very full and explicit, recites the provisions of the lease above referred to, states the fact and date of the sale and conveyance of the premises by Mrs. Yeoman to Gourley, and that the signer of the notice desired to terminate the lease and to prevent Hussey from exercising his option for an additional five years. Attached to this answer was an affidavit by one Hart stating that on March 30, 1907, he served said two notices upon said Hussey by leaving copies thereof with him, one signed by John Gourley and the other by Helen M. Yeoman. Hussey did not seek to amend the allegations of his bill, and he filed no affidavits contradicting this positive testimony. He did not seek a continuance or postponement of the motion to dissolve the injunction to enable him to procure testimony to overcome the answer, as permitted by section 18 of the statute relating to injunctions. The notices so set up in the answer appear to be in full compliance with the provisions of the lease, and completely terminated Hussey’s - option to have the lease extended for another five years, and accordingly at the end of the first five years for which the lease was granted he no longer had any right to retain possession of the premises. He therefore had no defense to the action at law which he seeks to enjoin, and under the well-recognized principles already stated equity will not take jurisdiction to enjoin the enforcement of the judgment, nó matter what the truth may be as to the other allegations of the bill.

Under the provisions of sections 75 to 80, both inclusive, of the statute relating to “Justices and Constables,” a writ of certiorari would have furnished Hussey an adequate remedy at law, if the Circuit Court, upon the presentation of a petition for a writ of certiorari, had power to ascertain and fix the proper penalty of the special bond required to be given under section 19 of the act concerning forcible entry and detainer. If Hussey had such a remedy at law, he could not resort to equity. But it is unnecessary to determine whether the court could take such a bond upon a petition for a writ of certiorari, for the reason that we are satisfied that upon the record before us Hussey had no defense in the forcible detainer suit.

The order is therefore reversed, and the cause is remanded to the court below with directions to dissolve the injunction, and (as the injunction is the only purpose of the bill) to also dismiss the bill.

Reversed and remanded with directions.


text:
    Stefano Paietta et al., Plaintiffs in Error, v. Illinois Zinc Company, Defendant in Error.
    Gen. No. 5061.
    1. Mines and Miners—section 18 (b) of act construed. This statute does not mean that a mine manager must be personally present at all times while conditions are being made safe. The statute is observed if the men who enter the mine to change unsafe conditions shall do so under the direction of the mine manager.
    2. Mines and Miners—what essential to recovery for wilful violation. In order for a violation of the Mines and Miners Act to give a cause of action to the person injured or to the relatives, the violation of the statute must have been the cause of the injury.
    3. Mines and Miners—when failure to mark dangerous place will not support recovery. Held; that failure to place a danger mark upon a rock was not the proximate cause of the death of the plaintiffs’ intestate but that such death was caused by his standing beneath such rock while knocking out the prop which supported it and while engaged in the business of causing it to fall.
    Action in case. Error to the Circuit Court of La Salle county; the Hon. Edgab Eddbbdge, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    B. P. Barasa and J. L. Murphy, for plaintiffs in error.
    McDougall, Chapman & Bayne, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Louis Paietta was killed by the fall of a rock from the roof of an entry in a coal mine operated by the Illinois Zinc Company at Oglesby, in La Salle county. His parents, residents of Italy, sued the company to recover damages for the death of their son, and alleged wilful-violations of chapter 93 of the Revised Statutes, relating to Mines and Miners. At the trial of the case, at the close of plaintiffs’ evidence, a verdict was returned for defendant by direction of the court. A motion for a new trial was denied and the company had a judgment on the verdict, and plaintiffs below prosecute this writ of error to review said judgment.

Carline was mine manager and.DuBois was night boss and mine examiner. Paietta was what was known as a company man, and had been working in the mine about six months, and had done almost every thing in the mine, except timbering, track laying and mining coal. The business of the company men was to clean up the roads and ways after the coal miners had left the mine at the end of the day, to clean up any falls which might have occurred during the day, and if the entries were not high enough, to take down enough of the roof to make them of proper height, and generally to put the mine in condition for work by the miners next morning. When DuBois went on duty at about four o’clock in the afternoon of February 26, 1906, Carline directed him to cause the bottom of a certain rock in a certain entry to be blasted off so as to increase the height of the entry at that place. DuBois went to the rock and marked thereon the place where the rock should be drilled. About seven o’clock he went to another part of the mine where Paietta and another company man, named Blow, were at work, and directed them to go to the rock in question, drill a hole in it at the point marked by him, charge it and explode it. He did not expect them to do this immediately, but expected them to do the work in which they were then engaged and then to have supper, which was' usually eaten between seven and eight o’clock, and then to blast off the rock referred to. About nine o’clock he went to the rock and found that his directions had been obeyed and that Paietta was at work loading up the rock which had been blasted off, and that Blow was getting his machine ready to drill another hole in said rock for the purpose of blasting off more of it. The evidence leaves it uncertain whether that was the last time DuBois was there before the accident, or whether he returned again a few minutes later and then went away. Before he went away for the last time, he noticed that another rock in the roof near by the one upon which the men were working had become in a dangerous condition as the effect of the blast. One edge of this rock rested on the rib and the other on a “gob” or wall that had been built up of material in the mine, and it was supported by a prop or timber near its center, and it had been loosened on one side by the blast. Before DuBois left the men he told them to clean up the rock that was down in the floor of the entry and that Blow should drill a second "hole, but that before they blasted that hole they should take down this other rock. He took a pick in their presence, and sounded-the rock, and told them that it was bad, and told them to be careful in taking it down as it was very bad rock. He told this to both Paietta and Blow. He then went away, and when they were ready to take this second rock down Blow went 30 or 40 feet away to get oil to fill his lamp, and Paietta started to take down this second rock and began by striking the prop with a sledge. When Blow saw that Paietta was going to strike the prop he called out to him, “Look out for that rock, it is bad.” Paietta struck the prop two blows, and the prop and the rock then fell, and the rock fell upon Paietta. Blow tried to lift the rock off from him, and could not, and went for help, and while he was gone Paietta got out from under the rock by his own efforts, but his head was badly injured and he died before he could be removed from the mine.

Section 18 (b) of the Mining Act directs that no one shall' be allowed to enter the mine to work therein, except under the direction of the mine manager, till all conditions have been made safe. The first count of the declaration charges a wilful violation of that provision. Paietta entered and worked in the mine that night under the direction of the mine manager, and no recovery could be had under that count. The statute should not be interpreted to mean that the mine manager must be personally present at all times while the conditions are being made safe, for that would be impracticable. There must often be many places in the mine which require repairs and work at the same time to make all conditions safe, and the statute cannot mean that there must be as many mine managers as there are places which require repair on any given night. The statute means that the men who enter and work in the mine to change unsafe conditions existing shall do so under the direction of the mine manager, and that was the case here.

Section 16 (d) requires that the mine manager shall see that all dangerous places are properly marked. Section 18 (b) requires the mine examiner to place a conspicuous mark where any dangerous conditions exist. The other counts of the declaration charge wilful violations of these provisions. DuBois was both night mine manager and mine examiner. The danger mark used in this mine was a cross made by white chalk on the dangerous place. When DuBois discovered that this second rock was dangerous, and ordered Paietta and Blow to take it down, and told them to be careful in taking it down because it was a bad rock, he did not place any danger signal upon it. Plaintiffs in error contend that it was his positive duty to place such a mark upon that rock; that no oral warnings he could give would take the place of this required statutory signal; that his failure to so mark the rock was wilful, within the meaning of the law; and also that Paietta may not have understood his verbal warning. Paietta was an Italian and spoke French and some English but not Lithuanian. Blow was a Lithuanian and spoke English, but not French or Italian. DuBois did not speak Italian, but spoke English and could speak French. When he gave an order to Paietta in English, which the latter did not fully understand, Paietta was accustomed to ask him in French what the order was and DuBois would then repeat it in French. DuBois gave the orders on this occasion in English only. Blow understood them. It is argued that Paietta may not have understood the warning, and that he was entitled to have his attention called to the danger by the danger mark.

If this rock had fallen upon Paietta while he was walking along the entry or engaged in other work in the entry at that place, there would be much force in this position. But the rock did not fall upon him while he was doing anything of that kind. There is nothing to show that the rock would have fallen at that time if Paietta had continued at other work. But Paietta was engaged in the work of taking down the rock. No danger signal was required by statute to inform a company man that when he was taking down a rock it would fall as soon as its supports were removed. He could not fail to know that the purpose of the prop was to support the rock, and that when it was removed the. rock was liable to fall. The duty upon which he was engaged was to make the rock fall down. No danger signal was required by statute to tell him that it would fall upon any person who stood under it when it came down. As the rock fell upon him just as the prop went out, it is evident that he stood directly under the rock while he knocked out the prop. In order for a wilful violation of this statute to give a cause of action to the person injured or to the relatives, the violation of the statute must have been the cause of the injury. We are of opinion that it cannot be justly said that the failure to place a danger mark upon this rock caused the death of Paietta, but rather that his death was caused by his standing underneath the rock while knocking out the prop which supported it, and while engaged in the business of causing it to fall.

We conclude that the proof did not establish a cause of action under any count of the declaration.

The judgment is therefore affirmed.

Affirmed.


text:
    Robert Carr, Administrator, Plaintiff in Error, v. United States Silica Company, Defendant in Error.
    Gen. No. 5071.
    1. Instructions—what may he considered upon application for peremptory. Upon a motion to direct a verdict for defendant, the court is not at liberty to weigh the evidence, or to determine that there is more evidence to support a theory of the case favorable to the defense than there is to support a theory favorable to plaintiff. If there is any evidence in the case from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find all the material averments of some one count of the declaration proved, then the trial judge must submit the cause to the jury; but if there is not such evidence, or if there is a mere scintilla of evidence tending to support plaintiff’s case, then the court may direct a verdict.
    2. Pleading—what general issue admits; what not. The plea of the general issue admits operation and control of instrumentalities alleged, but it does not admit the relation of master and servant between the parties.
    3. Appeals and ekbobs—when cross errors essential to review. In the absence of cross errors, rulings made against the prevailing party cannot be urged as erroneous.
    4. Mastbb and sebvant—what question for fury in action hy latter to recover for infury sustained. If, as the business was conducted, it was the duty of the master to furnish tools and appliances with which the work was to be done, then it was a question for the jury whether the appliances furnished were dangerous, and whether the servant knew that fact and assumed the risk of using them and whether the master was negligent in furnishing them.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    Butters & Armstrong, for plaintiff in error.
    William D. Fullerton, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On April 24, 1906, while Boy Hart was loading a horizontal hole in a sand bank with dynamite he was killed by the premature explosion of the dynamite. His next of kin were brothers and sisters. His administrator brought this suit against the United States Silica Company to- recover for the loss to said next of kin. The declaration consisted of two original and three additional counts. Each count charged, in substance, that defendant was in the business of mining and selling and transporting sand, and was possessed of a certain tract of land, with buildings and machinery, near Ottawa, and had a large mine in which it was mining sand, and had a number of employes engaged at or near the bottom of the mine in miriiug the sand, and used dynamite to blast loose the sand rock in said mine, and elevated the same by pumps to its warehouse and cars; and that Hart was working in said mine blasting sand from the side of the bank, and was in the exercise of due care, and was killed by an explosion of dynamite, and left the next of kin above referred to, who were; injured in their means of support. The first count averred that defendant negligently permitted and caused its employes, while blasting sand rock in said mine, to use iron tubes for the purpose of inserting dynamite into holes drilled for that purpose, and that while Hart was at work in said mine for defendant, by means of the negligence of defendant aforesaid a charge of dynamite then being inserted through an iron tube into a hole in said sand bank prematurely exploded, killing Hart. The second count charged that defendant negligently permitted and caused “divers of its said employes and others then working in said mine, including plaintiff’s intestate” to use certain iron tubes and insert dynamite through said tubes into the sand bank, and thereby causing the dynamite to rub against the inner walls of the tubes, and causing friction; by means whereof Hart, “while then and there engaged in work in mining sand for the defendant in the manner aforesaid” was killed by the premature discharge of dynamite while being inserted through said tube. The first additional count charged that Hart “was engaged as a servant of the defendant in said mine in this, that one William Leonard, being then and there in the employ of the defendant to blast, wash and elevate sand from said mine into bins, warehouses and cars of defendant, procured the plaintiff’s intestate to perform services for the defendant by way of assisting the said William Leonard in the aforesaid services of blasting, washing and elevating said sand into bins, warehouses and cars as ■ aforesaid, and while said plaintiff’s intestate was so in the employ of defendant as aforesaid” defendant negligently failed to provide safe and proper tools for its servants, including Hart, to use in the blasting and mining of sand as aforesaid, but negligently furnished its servants, including Hart, for the purpose of mining and blasting sand, unsafe and dangerous tools and appliances,- and that while Hart was inserting a charge of dynamite into a hole drilled f-or that purpose in the sand rock, with said unsafe and improper tools and appliances so furnished by the defendant, being an iron tamping stick made of a piece of gas pipe an inch and a quarter in diameter and eighteen feet long, said dynamite came in contact with the iron tamping stick and exploded, and Hart was killed. The second additional count described the mine more fully, and charged that defendant negligently failed to provide its servants engaged in the mining of said sand with safe and proper tools and appliances and sufficient and proper instruments for the performance of their services; and that on the day aforesaid defendant negligently provided its employes, including Hart, with an iron tamping stick or ramrod to be used in loading dynamite through an iron cylinder in the holes drilled in the sand rock, and that by means thereof Hart, while inserting a charge of dynamite through an iron cylinder into a hole driled in the sand rock, was killed by the explosion of said dynamite by means of said iron tamping stick. The third additional count charged that defendant negligently caused and permitted its servants to drill holes into the sand rock a distance of eighteen feet horizontally, and then insert into such holes a large iron pipe eighteen feet long, of the inside diameter of two inches, and then to push dynamite through said pipe to the end of said hole by means of an iron ramrod or tamping stick made from a piece of gas pipe eighteen feet long and an inch and a quarter in diameter, with a wooden plug in the end thereof; and that by. means thereof Hart was killed by the explosion of dynamite, while he was inserting dynamite through said iron pipe with said iron tamping stick, by reason of the friction of the iron ramrod with the iron easting. Some of the counts charged that Hart did not know or assume the dangers incident to doing that work in that maimer, and that defendant knew the danger. Defendant filed a plea of not guilty only. Upon a jury trial, at the close of the plaintiff’s evidence, the court instructed the jury to find the defendant not guilty. Such verdict was returned, a motion by plaintiff for a new trial was denied, defendant had judgment for costs, and plaintiff has sued out this writ of error to review said judgment.

The proof showed that defendant owned the sand pit; that it was ninety or one hundred feet deep; that the bottom of the pit was of • irregular shape, and about two acres in extent; that the sides of the pit were composed of a sand rock, which was sometimes hard and sometimes soft; that sand was obtained by blasting off the sides of the pit in the following manner: A hole would be drilled into the side of the pit in the sand rock by the use of a water drill. Formerly these holes were drilled twelve feet horizontally into the rock; afterwards the holes were made sixteen feet long. After the hole had been drilled, the person doing the blasting would push one or two sticks of dynamite into the further end of the hole with a wooden tamping stick or ramrod. This small charge of dynamite was then discharged by a cap and fuse. This was called ‘‘springing the hole.” This was done to form a cavity at the inner end of the hole large enough to receive the quantity of dynamite required to blast off the rock. Water was then forced into the hole, and the sand loosened in springing the hole was in that way washed out of the hole. A large number of sticks of dynamite was then pushed through the hole, one at a time, into the inner cavity, by the use of the tamping stick, which was always made two feet longer than the hole. Where the hole was drilled into the rock horizontally, difficulty was sometimes experienced in pushing the dynamite through the hole into the inner cavity, because some sticks of dynamite were liable to lodge in small cavities in the bottom of the hole before the end of the hole was reached. After a heavy charge of dynamite had been placed in the cavity, the hole was filled with mud or sand, and tamped in with the tamping stick if tamping was needed to make the shot effective ; but if it was not needed this tamping was not done. The dynamite was then exploded by means of a cap and fuse previously adjusted, and thereby a quantity of sand rock was blasted off from the side of the pit. A few weeks before Hart was killed, William Leonard, the man in charge of the work at the bottom of the pit, began drilling holes sixteen feet deep in the rock. It was found still more difficult to push the dynamite into a hole so far from the front. There was proof that about that time Leonard and Hart learned from a man who had worked in another sand pit near Ottawa that he used an inch and a half iron pipe through which to load the holes with dynamite. There is other proof that for several years iron pipe had been used by Leonard in that mine for loading the holes with dynamite, whenever any difficulty was experienced in getting the dynamite into the hole. There was such pipe lying all about the bottom of the pit, which apparently had been used, or was there to be used when necessary, in conveying water for the water drill, and also for washing out the sand after the springing of the hole. On the next working day following this conversation, after a hole had been sprung, Hart took an inch and a half pipe which he found in the pit and inserted it in the hole, and then pushed the dynamite through this iron pipe into the cavity with the wooden tamping stick. About two weeks before Hart was killed, the wooden tamping stick was broken. Defendant’s foreman, who was located at the top, outside of the pit, was notified of that fact, and he screwed two pieces of small gas pipe together, and placed in the end a wooden plug six or seven inches long, and took this to Leonard and Hart and asked them if it would do for a tamping stick. Leonard replied that it would have to do till they got another wooden tamping stick. Hart thereupon used said small gas pipe to push the dynamite through the inch and a half tube into the cavity. Two days later defendant’s foreman took another wooden tamping stick into the pit and left it there. Hart thereafter used it for tamping mud and sand into the hole after the cavity had been filled with dynamite and the tube had been withdrawn, but he found this wooden tamping stick too crooked for the work of pushing the dynamite through the pipe, and so he continued to use the small iron tamping rod for that purpose. While he was driving in a stick of dynamite with this iron rod, in loading a hole with dynamite, the explosion occurred which killed him. A number of witnesses with much experience in this kind of work testified that it was very dangerous to drive dynamite through an iron pipe with an iron ramrod, and that there was great danger of causing the dynamite to explode by that means; some attributing the explosion to the contact of iron with iron, and saying that fragments of dynamite would be left along the route of the casting, and would be ground between the iron ramrod and the casing, and thereby exploded, and others that more or less sand would be in the casing, and that the rubbing of the sand between the two iron instruments would produce friction and sparks, and this would cause the dynamite to explode. Several witnesses testified that the danger was not removed by placing a wooden plug at the end of the iron tamping rod. No one saw Hart at the moment of the explosion, but the proof showed that Hart had brought to the vicinity of the mouth of the hole which was to be charged the number of sticks of dynamite he expected to insert for the charge, and the cap and fuse with which he intended to explode the dynamite, and that the cap and fuse were lying outside the hole and had not been used or exploded, and that only a part of the dynamite had been inserted when the explosion occurred.

Upon a motion to direct a verdict for defendant, the court is not at liberty to weigh the evidence nor to determine that there is more evidence to support a theory of the ease favorable to the defense than there is to support a theory favorable to plaintiff. If there is any evidence in the case from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find all the material averments of some one count of the declaration proved, then the trial judge must submit the cause to the jury. But if there is not such evidence, or if there is a mere scintilla of evidence tending to support plaintiff’s case, then the court may direct a verdict. Libby, McNeill & Libby v. Cook, 222 Ill. 206. Defendant contends that there is no evidence in this record from which the jury could find that the relation of master and servant existed between the defendant and Hart; that there is no evidence from which the jury could find that the explosion was caused by the means alleged in the declaration; and that there is no evidence from which the jury could find that the defendant failed to furnish, tools which were reasonably safe for the use intended. Plaintiff insists that his evidence on each of these subjects was sufficient to authorize a verdict for the plaintiff, and also that the plea of not guilty did not put in issue the allegation that the deceased was a servant of the defendant, which allegation is found in most but not in all of the counts of the declaration, as will be seen by the fore,going statement.

At common law, and in the earlier decisions in this state, the rule was that the plea of not guilty put the plaintiff upon proof of the whole charge contained in the declaration. City of Champaign v. McMurray, 76 Ill. 353. This rule has gradually been departed from to a limited extent. In McNulta v. Lockridge, 137 Ill. 270, it was held that the plea of not guilty admitted the character and capacity in which the defendant was sued. In Illinois Life Association v. Wells, 200 Ill. 445, it was held that the plea of the general issue admitted the capacity in which the defendant was sued, together with the change of name and assumption of liabilities alleged in the declaration. In Chicago City Railway Co. v. Carroll, 206 Ill. 318, it was held that there was evidence tending to show that appellant owned and operated the railroad, and therefore it was unnecessary to determine whether those allegations were admitted by the plea of not guilty. In none of the foregoing cases was the relation of master and servant involved. In Penn. Co. v. Chapman, 220 Ill. 428, the declaration alleged that the plaintiff was the servant of the defendant, and that he was injured in that service. The general issue was filed. It was held that thereby defendant admitted that at the time of the injury it was operating the line of railroad mentioned in the declaration, and that the operators in charge of the train were its servants and employes, though it was shown that, independent of the question of pleading, each side offered evidence on that question, and it was submitted to the jury under the instructions of the court. The proof showed without dispute that the appellee was the servant of whatever company was operating that particular railroad, and it was in effect held that under the plea of not guilty the appellant could not deny that it was operating that railroad. In Chicago Union Traction Company v. Jerka, 227 Ill. 95, a case not involving the relation of master and servant, it was held that the plea of not guilty did not put in issue the ownership or possession or operation of the property or instrumentalities, which caused the injury; but that the defenses based upon an intended denial of those allegations of the declaration must be pleaded specially, and this as a matter of stare decisis, regardless of the basis of the original ruling to that effect. In Pell v. J. P. & A. R. R. Co., 238 Ill. 510, a case of an injury to a passenger on an interurban line, it was held that the plea of not guilty did not put in issue the ownership of the track or the control of the cars. In Winn v. C. C. C. & St. L. Ry. Co., 239 Ill. 132, where a person driving on a highway was killed by being struck by a train upon a railway, it was held that the character in which the defendants were sued was not pnt in issue by the plea of not guilty. In Brunhild v. Chicago Union Traction Co., 239 Ill. 621, where a street car struck and killed a man driving along a highway, it was held that the plea of not guilty did not put in issue the appellant’s ownership and operation of the instrumentalities that caused the injury. It will be seen that but one of the foregoing .cases involved the relation of master and servant, and that in that case it was clearly proved that the person injured was in the employ of the party who owned and operated the railroad upon which he was injured, and that it was there held that the ownership and operation of that railroad by' the appellant was not put in issue. On the other hand, there are numerous cases where it has been treated as essential that where the cause of action is founded upon a violation by the master of the duties growing out of the alleged relation of master and servant between the parties, the plaintiff must prove the truth of his allegation that he was the servant of the defendant. Condon v. Schoenfeld, 214 Ill. 226, was such a case.

We therefore conclude that those counts of the declaration which alleged that Hart was the servant of defendant required proof of that allegation, but that under the plea of not guilty it was admitted that defendant was the owner and controlled and operated the instrumentalities connected with the blasting of the sand from this rock.

There was proof that Hart was in the employ of the defendant. Two witnesses testified that he was working for the defendant. Leonard, who had charge of the work at the bottom of the pit, testified that he had been in the employ of the defendant for several years, and was in its employ at the time of this injury. Leonard hired Hart and paid him; but that did not prove but what he hired him for the defendant. Leonard testified on cross examination that he was hired to do this work at so much per bin, each bin holding about thirty-two tons; that he did the blasting, got the sand out of the pit, turned it over to the company at the top, and was paid so much a bin; that the men working in the pit were working for him; and that Miller, the superintendent at the top, had nothing to do with employing the men who did the pit work. Defendant then offered to prove by Leonard that he had a contract with defendant for doing all the mining and blasting of sand in the sand pit: that he was to furnish his own help and pay them, and receive a certain rate per bin for all the sand produced; and that from the time that this contract was made he employed and discharged and paid the men who worked in the pit, including Hart. The court sustained an objection interposed by plaintiff to this offer. No cross errors are assigned, and the correctness of this ruling is not presented for review. There was other proof tending to show that the men working in the pit were working for the defendant to some extent and in some ways. The man who repaired the pumps worked in the pit a part of the time, and worked on top a part of the time, and there was nothing to indicate that he was working for two masters, or that any separate account was kept of his time in the pit and of his time at the top. The proof showed that Hart worked on top a part of the time when work was slack in the bottom of the pit, and there is nothing to indicate that he changed employers when he did so. The dynamite used in blasting was obtained from the top, from the storehouse of defendant. When the wooden tamping stick broke, either Leonard or Hart applied to the foreman at the top for another tamping stick, and the iron tamping rod was prepared by him and supplied for temporary use, and then another wooden tamping stick was made and brought down, with the inquiry whether it was sufficient. Apparently all parties recognized the duty of the defendant to furnish all the appliances for doing the blasting. That it was dangerous to use the iron tamping stick provided by the defendant appears from the testimony. Hart being dead, no direct proof was obtainable as to whether he did or did not know that it was dangerous; but while he had worked about this and other sand pits, he had never worked at blasting or the use of dynamite till a comparatively short time before he was killed. Leonard, who employed and set him to work, did not warn him of the dangers.

We are of opinion that there was sufficient evidence of the relation of master and servant between defendant and Hart so that the court could not direct a verdict for defendant on the ground that there was no evidence from which the jury could reasonably find that that relation existed: although the testimony of Leonard, just before the ruling above referred to, raised some question as to the exact nature of that relation. At least one count of the declaration did not allege that the relation of master and servant existed. If, as the business was conducted, it was the duty of the defendant to furnish tools and appliances with which the work was done, then it was a question for the jury whether the appliances furnished were dangerous, and whether Hart knew that fact and assumed the risk of using them, and whether defendant was negligent in furnishing them. We conclude that there was sufficient evidence on these subjects so that the cause should have been submitted to the jury.

The judgment is therefore reversed and the caus.e remanded.

Reversed and remanded.