author: Mr. Justice Boggs

text:
    Adolph Thomas, Appellee, v. Ohio Coal Company, Appellant.
    1. Waters and water courses, § 32*—what is nature of damages for pollution of natural water course. Damages sought for the pollution of a natural water course which flows through plaintiff’s pasture and in which he waters his stock are possessory damages.
    2. Waters and water courses, § 32*—what plaintiff must prove in action for damages fon pollution of natural water course. In an action to recover for damages sustained by the pollution of a natural water course on plaintiff’s land, where plaintiff seeks possessory damages only, it is only necessary for plaintiff to prove that he was in possession and control of the premises in question during the whole time for which he seeks damages.
    3. Waters and water courses, § 29*—when evidence sufficient to show pollution of water course. In an action to recover for the pollution by the flow from defendant’s oil wells of a natural water course flowing through plaintiff’s pasture and from which he waters his stock, evidence examined and held clearly to preponderate in favor of the contention that salt water and oil escaped from defendant’s wells into the water course and to plaintiff’s pasture.
    4. Damages, § 192

      —when allowed. The mere fact that the amount of damages may be difficult to ascertain is no reason why damages should not be allowed.
    5. Torts, § 23*—when action may be brought against wrongdoers separately. Where one is damaged by the contributive action of several parties without concert of action, the action may be brought against each one separately for the damage caused by him.
    6. Damages, § 191*—when amount of damage caused by one of several wrongdoers for jury. In an action where there is evidence that the acts of another may have contributed with the acts of defendant to cause the damage sued for, it is for the jury to say, from all the evidence, what amount of damages should be allowed to plaintiff.
    7. Waters and water courses, § 29*—when evidence sufficient to sustain verdict as to amount of damages for pollution of water course. In an action to recover for pollution by defendant’s oil wells of a natural water course flowing through plaintiff’s pasture and from which he waters his stock, where there was evidence that the wells of another than defendant might have contributed to cause the damage sued for, held that the finding of the jury of a verdict for plaintiff for a specified amount was warranted by the evidence.
    8. Nuisance, § 62*-—when pollution of water course a public nuisance. Under paragraph 3 of section 221 of the Criminal Code (J. & A. 3859), providing that to “corrupt or render unwholesome or impure the water of any spring, river, stream, pond or lake, to the injury or prejudice of others,” shall be a public nuisance, it makes no difference how the water is polluted or rendered unwholesome or made impure, if in fact it is rendered unwholesome or impure to the prejudice of others.
    9. Riparian owners, § 15*—what are rights of riparian owners as to flowage. The right of every owner of land through which a stream of water flows, to have the same flow in its natural state, extends to the quality as well as the quantity of water, and therefore one who pollutes or contaminates the water may be liable to those injured thereby.
    10. Waters and water courses, § 17*—when stream may not be polluted. It is settled law in this State that no one can directly or indirectly foul or pollute a stream of water, even in the pursuit of a legitimate business, and thereby damage a lower proprietary owner without rendering himself liable.
    11. Waters and water courses, § 31

      —when instruction on rights of riparian owners correct. In an action for damages for the pollution of a natural water course flowing through plaintiff’s land, an instruction that owners of land through which a stream of water flows is entitled to the use and enjoyment of the water and to have the same flow in its natural state without interruption or pollution, held correct.
    12. Appeal and error, § 1554*—when giving of instructions not conforming to pleadings harmless error. In an action to recover for pollution by defendant’s oil wells of a natural water coarse flowing through plaintiff’s pasture, and from which he waters his stock, instructions referring, to injuries to growing crops as well as injuries to the pasture, when plaintiff, claims no damage for injuries to crops, are not reversibly erroneous though incorrect, where the instructions limit plaintiff to such damages as are shown by the evidence.
    13. Waters and water courses, § 31*—when instruction on nonliability of owner of oil well for pollution of stream properly refused. In an action to recover for the pollution by defendant’s oil wells of a natural water course flowing through plaintiff’s pasture and from which he waters his stock, it is proper to refuse an instruction that defendant was not liable if the damage sued for occurred in the ordinary operation of defendant’s wells and if the escape of the salt water was a necessary incident in the management of its business.
    14. Instructions, § 126*-^when abstract and argumentative instructions properly refused. «It is not error to refuse instructions which are abstract and argumentative in form.
    15. Instructions, § 88*—when instruction on preponderance of evidence properly refused. An instruction that plaintiff, in order to recover, must prove his case to‘ the satisfaction of the jury by a preponderance of the evidence is erroneous and is properly refused, such instruction not being a correct statement of the amount of evidence required.
    16. Damages, § 241*—when verdict wñll not be disturbed on ground of excessiveness. Unless a verdict is so excessive as to be against the manifest weight of the evidence, it is the duty of a reviewing court to let the verdict stand.
    17. Damages, § 191*—when question for jury. The question of amount of damages is one peculiarly for the jury.

      Appeal from the Circuit Court of Clinton county; the Hon. James C. McBbide, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Abram Simmons and Hugh V. Murray, for appellant; M. P. Murray, George E. Murray and Aloys Lager, of counsel.
    Ford & Jones, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

This is an action on the case brought by appellee against appellant and certain other oil companies to recover damages for injury sustained by appellee on account of the alleged pollution of the waters in a natural water course running through the premises of appellee, and which premises were used for pasturage purposes. The suit was dismissed by appellee against all of the defendants except appellant. A trial was had which resulted in a verdict and judgment in favor of appellee for $125. From that judgment appellant prosecuted this appeal.

The verdict in this case discloses that appellee in addition to several hundred acres of farm lands was the owner in possession of about seventy acres of pasture land through which flowed a natural water course, known as Lost Creek. Beginning with the year 1909 various oil companies began to sink oil wells in the lands lying to the north and east of appellee’s pasture. The lands on which said oil fields were located, either directly or indirectly, had their natural drainage into said creek.

The evidence of appellee’s witnesses is to the effect that beginning with the year 1909 and 1910, the waters of said creek were being polluted by the flow from said oil wells. Certain of the witnesses describing the water as being ‘‘awfully salty,-’’ ‘‘some oil on it.” “The water not being fit for the cattle to drink.” “The oil making the cows’ bags greasy and hard to get the milk.” “That it ruined the grass in the pasture and that they saw lots of oil in the bed of the creek wherever there was a drift. ’ ’ In fact, the evidence is to the effect that the water which had heretofore been of a pure character in said stream as it passed through appellee’s pasture became unfit for the cattle to drink and that it damaged the grass in said pasture. The evidence further discloses that material damages were suffered by the appellee on account thereof.

Appellant concedes that appellee is damaged, but contends that it did, not cause the damage. On page forty of appellant’s brief we find the following: “No effort was made to minimize or to disprove appellee’s claim of damages by appellant. Indeed, there never was any doubt about his having suffered some damage from both oil and salt water. Appellant, however, was not to blame.”

Appellant assigns numerous errors on the record, but it will not be necessary for us to give specific attention to each separately. The errors assigned may be summarized as follows:

First, that appellee failed to prove ownership of the land in question. Appellant in his argument on this proposition proceeds on the theory that the same proof of ownership must be made in an action for damages of this character as would have to be made in an action which directly involved the title. The only evidence of damages submitted to the jury on the trial was for the injuries suffered by appellee on account of the pollution of the waters of Lost Creek so far as the same pertained to the use made by appellee of said waters for his stock and as to the damage to his pasture. As the case was finally submitted to the jury, no evidence was offered as to a permanent injury to the land. The damages claimed are what is known as possessory damages. It was, therefore, only necessary for appellee to prove that he was in the possession and control of the premises in question, and had been during all of the time for which he sought damages. Advance Elevator & Warehouse Co. v. Eddy, 23 Ill. App. 352; Joseph Schlitz Brewing Co. v. Compton, 46 Ill. App. 34; City of Chicago v. McGraw, 75 Ill. 571; McLean v. Farden, 61 Ill. 109. The evidence, however, discloses that appellee had been in possession of the premises in question more than thirty years.

Second, appellant next contends that the evidence does not connect it- with the damages suffered by appellee. It is contended by appellant that the evidence does not disclose that the wells owned by appellant contributed to the injury of appellee’s premises. Some eight or ten witnesses on behalf of appellee testified that they knew the location of the wells of appellant, and that they observed the flow of the salt water therefrom. Some of said witnesses testified that they observed the “rainbow” on the water, which as we understand has reference to a thin covering of oil on the water. These witnesses further testified that they traced these waters from the wells of appellant to Lost Creek, which creek flowed directly through appellee’s land. In fact, appellant in its brief concedes that all of the lands on which said oil wells were located in that vicinity had their drainage into Lost Creek. Appellant also concedes that, salt water flowed from its wells but contends that practically no oil escaped on account of the reservoirs which they had constructed. The witnesses for appellee, however, testified to having observed where the water had drained from the reservoirs of appellant, and that it showed that oil had also escaped through said drains and from there into Lost Creek. The evidence, we think, clearly preponderates in favor of appellee’s contention that salt water and some oil, at least, escaped from the wells of appellant to said Lost Creek, and to the pasture of appellee.

Third, appellant’s third contention is that inasmuch as other oil companies contributed to the damage suffered by appellee, and inasmuch as it cannot be definitely ascertained the exact extent to which appellant’s wells contributed to said injury, that therefore appellee cannot recover. In connection with this contention we would say that if this rule should be adopted by the courts it would allow certain independent agencies, by their wrongful acts, to cause damages to innocent third parties without being liable therefore, simply because the parties injured would not be able to prove conclusively the exact amount of damages contributed by each. We do not believe that this rule obtains in this State. The mere fact that the amount of damages may be difficult to ascertain is no reason why damages should not be allowed. Daughetee v. Ohio Oil Co., 263 Ill. 518.

In Sutherland on Damages (2nd Ed.), vol. 1, at page 572, the author in discussing this subject says: “In cases where parties are sued for contributive action in damaging one, where there is no concert of action, the action may be brought against each one separately for the damages caused by them; and while the damages may be difficult to ascertain, the jury would measure the injury of each with a liberal hand.”

While it is conceded that it is hard to ascertain the exact amount of damages which appellee’s lands may have suffered from the flow of salt water and oil from the wells of appellant, still the record is not without evidence on which, we think, the jury would be able to make a reasonable and conservative estimate of the same. The evidence showed the number of oil companies operating on the land draining into Lost Creek with the number of wells operated by them respectively. The evidence also discloses that the appellant and the Southwestern Oil Company were the two main companies operating in said fields; that out of something over eighty wells, appellant had eighteen, and that the wells of appellant were among the strongest and heaviest producers in said field. Then, too, numerous witnesses testified on behalf of appellee and certain witnesses testified on behalf of appellant, describing the conditions surrounding appellant’s wells and what they observed with reference to the flow of water and oily substances from the same.

It was for the jury to say, from all the evidence, what amount of damages should be allowed appellee from appellant, and from the amount allowed we are unable to say that the jury were not warranted in making such finding.

Fourth, appellants next contention is that before it could be held liable the proof must show that in operating its said wells it used its property in an unreasonable manner. In other words, that if in the legitimate operation of its wells, damages must necessarily be sustained by appellee through the contamination of the waters of said creek, that the injury would be damnum absque injuria. Appellant cites several cases from the courts of other States which it insists supports its contention. We do not, however, believe that this question is an open one in this State. The statute provides that “it is a public nuisance to corrupt or render unwholesome or impure the water of any spring, river, stream, pond or lake, to the injury or prejudice of others.” Section 221, ch. 38, Hurd’s Revised Statutes, being part of the Criminal Code. (J. & A. jf 3859.)

In the case of Voss v. Chicago Sandoval Coal Co., 165 Ill. App., page 565, after quoting said statute at page 568, this court says: “Hnder this statute it would make no difference how the stream was polluted or rendered unwholesome, or how the water was made impure; if it in fact was rendered unwholesome. or impure to the prejudice of others then it would be a violation of the statute.”

In the American & English Encyc. of Law, vol. 28, at page 968, the author says: ‘1 The right of every owner of land through which a stream of water flows, to have the same flow in its natural state, extends to the quality as well as the quantity of water, and therefore one who pollutes or contaminates water may be liable to those injured thereby.” This doctrine is also recognized in the cases of Tetherington v. Donk Bros. Coal & Coke Co., 232 Ill. 522; City of Kewanee v. Otley, 204 Ill. 402; Beidler v. Sanitary District of Chicago, 211 Ill. 628.

Other authorities in this State could be cited to the same effect, but we regard the rule that no one can directly or indirectly, even though in the pursuit of a legitimate business, foul or pollute a stream of water and thereby damage a lower proprietary owner without rendering himself liable for damages therefor, as being so well established in this State that the citation of authorities is unnecessary.

Fifth, appellant next contends that the court erred in giving the three instructions given on behalf of appellee and in modifying the instructions given on behalf of appellant, and in refusing certain instructions offered by appellant. Appellee’s first instruction presented an abstract proposition of law to the effect that the owners of land through which a stream of water flows are entitled to the use and enjoyment of said water and to have the same flow in its natural state without interruption or pollution. We believe this states a correct principle of law and is supported by the authorities above cited.

The objections urged to appellee’s second and third instruction is that they refer to damage to the growing crops as well as injuries to the pasture. No damages were claimed as to growing crops and the instructions should not have referred to them, but as these instructions especially limit the jury to the damages sustained by appellee as shown by the evidence, we do not think appellant was seriously prejudiced.

Complaint is made by appellant that the court erred in modifying its first, second, third, fourth, fifth, sixth and eighth instructions. We have examined the instructions as offered and as modified and given, and we do not believe that the court erred in making the modifications. In fact, the modifications made the instructions conform with the view of the law held by us in this case.

We have examined appellant’s refused instructions and are .of the opinion that the court did not err in their refusal as each of them present in our judgment an incorrect theory of the law covering this case. Instructions ten, eleven and fifteen inform the jury that if the damages to appellee occurred in the ordinary operation of appellant’s wells, and the escape of said salt water and oil to Lost Creek was a necessary incident to such operation and was unavoidable in the management of said business, appellant would not be liable for damages therefor. What we have already said disposes of these instructions as we do not believe these instructions present a correct principle of law.

Defused instruction nine, so far as proper, was covered by other instructions given on behalf of appellant. Instruction twelve presents an erroneous rule for ascertaining damages. Instruction thirteen is abstract and argumentative in form and it was not error to refuse the same. Instruction fourteen informs the jury that before the plaintiff can recover he must prove his case to their satisfaction by a preponderance of the evidence. This is not a correct statement of the rule as to the amount of Evidence required.

Lastly, it is contended by appellant that the verdict was excessive. We cannot, however, believe that appellant can very seriously contend in view of the evidence that this verdict was excessive. At least, it cannot be said that the verdict was so excessive as to be against the manifest weight of the evidence, and unless we can say this, it would be our duty to let the verdict stand as the question of damages is one peculiarly for the jury.. We are of the opinion that the verdict was warranted by the evidence and that it is not excessive.

Finding no reversible error in this record the judgment of the trial court will be affirmed.

Judgment affirmed.

Justice McBride took no part in the hearing or decision of said cause.


source: Caselaw Access Project

license: Public Domain

text:
    Annie Lovas by Annie Lovas, her next friend, Appellee, v. Independent Breweries Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Granite City, Madison county; the Hon. M. R. Sullivan, Judge, presiding. . Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Annie Lovas, minor, by Annie Lovas, her mother as next friend, plaintiff, against the Independent Breweries Company and Wagner Brewing Company, defendants, in the City Court of G-ranite City, Madison county, to recover for personal injuries sustained by the breaking of a porch railing on a house owned by defendants and occupied by plaintiff’s mother, causing plaintiff to fall to the ground, a distance of about twenty-two feet. The suit was dismissed as to Wagner Brewing Company. From a judgment for plaintiff of $7,000, defendant appeals.
    The amended declaration charged, in substance, that on October 2, 1913, and prior thereto, the Wagner Brewing Company and defendant were the proprietors and in charge of a two-story frame building rented and occupied by Annie Lovas, the mother of plaintiff; that on said date the porch on the second floor in the rear of the building and the railing thereon were defective, being rotten at each end and the nails therein being rusted; that the said defects were secret and latent and were known to the defendant hut were unknown to plaintiff and her mother, and could not have been known to them by the exercise of due care and by careful examination and observation; that plaintiff was ten years of age, and resided with her mother in the premises; that on July 7, 1914, while plaintiff was leaning against the railing and while in the exercise of due care for her own safety, not knowing of its dangerous condition, the railing gave way and fell, causing her to fall to the ground, injuring her, etc.
    The building was a two-story frame structure containing two large rooms downstairs used as a saloon and grocery store, and eight rooms upstairs used for living rooms. The porch in question was on the second floor, at the rear of the building, and reached either by a stairway leading up from the ground on the outside or from one on the inside of the house. A hallway on the second floor ran through the entire middle of the building, dividing the upstairs rooms into groups of four on each side, and opening through a door onto this porch. The porch was about twenty-two feet from the ground, extending along the north end of the house and about fifty feet long from east to west and about seven feet wide. It had a banister or railing from two and one-half to three feet high around the three sides, except where the outside stairway entered it. This porch was used by the occupants of the building in connection with the living rooms. The evidence as to the condition of the railing was conflicting. Plaintiff’s witnesses testified that there were secret and latent defects in the banister on the porch; that attention was called to such defects by a former tenant prior to the time the same were rented to plaintiff’s mother; that the banister was not repaired but remained in a defective condition from October 2, 1913, the date of the injury. Anna Lovas, mother of plaintiff, testified that the top railing of the banister looked all right, and that she did not know of its defective condition either at the time she rented the premises nor at any time until after the accident. Plaintiff testified that she knew nothing of the defects. Defendant’s witnesses testified that no notice was given them by any one of the defects.
    Abstract of the Decision.
    1. Landlord and tenant, § 233

      —when landlord liable for injuries due to defects in premises. The owner of premises rented to tenants is liable if in the premises there are secret and latent defects known to the owner but unknown to the tenant, and which cause injury to the tenant or her family.
    2. Landlord and tenant, § 258*—when evidence sufficient to show latent defects in porch railing. In an action by a minor to recover for personal injuries sustained in falling from a porch of a house occupied by his mother, with whom he resided, as a result of the breaking of the rail of such porch while plaintiff was leaning thereon, where the evidence was conflicting, evidence held sufficient to warrant the jury in finding that at the time plaintiff’s mother moved, into the premises there were latent defects in such rail, and that no repairs were made thereon until after the accident. t

      One of defendant’s witnesses, a carpenter, who was in its regular employ and whose duty it was to look after its different buildings, testified that he repaired this banister and the railing around the porch on October 1, 1913, and again on October 18, 1913, and placed said banister in good sound condition.
    Vaughn & Meyerstein and Warnock, Williamson & Burroughs, for appellant.
    J. M. Bandy, B. W. Griffith and H. J. Bandy, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

3. Landlord and tenant, § 206 —when landlord required to repair porch. Where a porch is used in common by two tenants the landlord is required to keep up the repairs thereon, since the porch is not in the exclusive possession of either tenant.

4. Negligence, § 97*—what degree of care required of child ten years of age. A child ten years of age is not required to use that degree of care for her own safety which would be exercised by an ordinary prudent adult person under like circumstances.

5. Negligence, § 106*—-when negligent conduct of parent imputed to child. A child ten years of age is not bound by the negligent conduct of her mother in an action for personal injuries brought for the benefit of the child herself.

6. Instructions, § 10*—when giving of numerous instructions improper. The practice of submitting a large number of instructions is a mischievous practice which should not be countenanced by the courts, since instead of assisting the jury to a proper determination of the questions of fact it more frequently misleads and confuses them.

7. Trial, § 120*—when associate counsel may occupy rest of alloted time for argument. Where forty minutes is allowed hy the court to each side for argument - and one counsel for plaintiff occupies part of the time allowed, it is not error to allow another counsel for the same side to occupy the balance of the time in further argument although at the end of the argument of the first counsel for plaintiff defendant waives argument and moves to submit the case to the jury without further argument.

8. Damages, § 134*—when verdict for personal injuries to child not excessive. In an action by a child ten years of age to recover for personal injuries sustained hy reason of a fall "from a porch, where plaintiff’s injuries necessitated the removal of a large portion of the scalp, leaving the brain protected only by the skin and exposing plaintiff at all times to serious injuries, a verdict for plaintiff for $7,000 held not excessive.


text:
    William H. Stone, Appellee, v. Donk Brothers Coal & Coke Company, Appellant.
    1. Appeal and error, § 1410

      —when sufficiency of evidence to sustain finding only question on appeal. Where on appeal an assignment of error raises a question of fact, the only question to be decided by the reviewing court is whether the finding is against the manifest weight of the evidence.
    2. Mines and minerals, § 176*—when evidence sufficient to sustain finding as to unsafe condition of entry to mine. In an action by a miner to recover for personal injuries, where it was alleged that owing to the negligence of defendant in failing to sprinkle the entry where plaintiff was driving a car at the time of the accident, the dust raised by the car prevented plaintiff from seeing exactly where he was, and caused him to jump off. the car on a curve in such fashion as to strike the side of the entry and be thrown under the car and run over, plaintiff’s evidence examined and held to warrant the conclusion that at the time of the accident an unsafe condition existed in the entry.
    3. Mines and minerals, § 179*—when evidence sufficient to support finding for plaintiff as to cause of injury. In an action by a miner to recover for personal injuries where it was alleged that owing to the negligence of defendant' in failing to sprinkle the entry where plaintiff was driving a car at the time of the accident, as required by statute, the dust raised by the car prevented plaintiff from seeing exactly where he was and caused him to jump off the car on a curve in such faqhion as to fall against the side of the entry and to be thrown under the car and run over, a finding for plaintiff held supported by a clear preponderance of the evidence.
    4. Mines and minerals, § 41*—how Miners’ Act construed. Recent cases give a somewhat more liberal construction to the Miners’ Act (J. & A. H 7475 et seq.) than did the earlier cases.
    5. Mines and minerals, § 148*—when evidence sufficient to sustain declaration. In an action to recover for personal injuries sustained by a miner while driving a car in defendant’s mine, where the declaration charged that an unsafe condition existed in the entry where plaintiff was driving at the time of the accident, and that plaintiff was allowed to enter the same for work otherwise than under the direction of the mine manager, evidence held sufficient to sustain the declaration.
    6. Mines and minerals, § 86*—when mine owner liable for negligence of mine examiner. Hurd’s Rev. St. 1909, ch. 93, sec. 18, prescribing the duties of mine examiners, clearly contemplates that the mine owner shall keep his mine in a safe condition to protect the men employed by him therein from injury, so that a wilful failure of such examiner to make the examination and reports required by the section, if resulting in injury to miners, renders the mine owner liable therefor.
    7. Mines and minerals, § 85

      —when failure of mine examiner to report dangerous condition of mine immaterial. Where a dangerous condition exists in a mine and is known to the mine examiner, it is unimportant, in so far as the liability of the mine owner for injury caused thereby is concerned, whether the mine examiner reports such condition to the mine manager, since under the Miners’ Act (J. & A. 7475 et seq.) the mine examiner is a vice principal of the mine owner.
    8. Mines and minerals, § 114*—who is vice principal. A mine examiner is a vice principal of the mine owner.
    9. Mines and minerals, § 182*—when question of dangerous condition of entry to mine for jury. In an action by a miner to recover for personal injuries sustained as a result of the alleged negligence of defendant in permitting a dangerous condition to exist in an entry of the mine, the question of the condition of such entry at the point where the accident occurred is a question of fact for the jury.
    10. Mines and minerals, § 84*—when permitting of employee to work wilful violation of Miners’ Act.° To permit a miner to entei a mine to work therein otherwise than under the direction of the mine manager, while a dangerous condition is known to exist therein, and before such dangerous condition is made safe, is a conscious violation of Hurd’s Rev. St. 1909, ch. 93, sec. 18, prescribing the ' duties of mine examiners, and renders the mine owner liable for a wilful violation of the act.
    11. Negligence, § 53*—when person liable for injury proceeding from two causes. Where an injury proceeds from two causes operating together, the parties putting in motion one of them is liable therefor as though it were the sole cause.
    12. Negligence, § 53*—what constitutes proximate cause. To be the proximate cause of an event, a negligent act or omission need not be the sole cause or the last or nearest cause, it being sufficient if such ■ act concurs with the other causes acting at the same time, which in combination with it causes the injury.
    13. Negligence, § 196*—when proximate cause question for jury. What is the proximate cause of an event is ordinarily a question of fact for the jury.
    14. Negligence, § 48*—what constitutes proximate cause. A cause may be the proximate cause of an injury, so as to render defendant liable, if it be one of the causes, though not the only cause, of the injury, but without which the accident would not have happened.
    15. Mines and minerals, § 80

      —when mine owner liable for permitting employee to enter unsafe place. In an action by a miner for personal injuries, it is proper to refuse to hold a proposition that Hurd’s Rev. St. 1909, ch. 93, sec. 18, providing that miners shall not be permitted to enter dangerous places in a mine until the same are made safe, except under the direction of the mine manager, has no application to a dusty road in a coal mine except in so far as the question of explosions is concerned, where the declaration charges that an unsafe condition existed in the mine at the time of the accident and where the dusty condition of the mine was one of the elements which went to make up the unsafe condition charged.
    16. Mines and minerals, § 125*—when contributory negligence no defense. Under the Miners’ Act (J. & A. j[ 7475 et seq.) contributory negligence is eliminated where a wilful violation of the statute is alleged and proved.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bebnbeuter, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    "Keefe & Sullivan, for appellant.
    T. M. Webb and M. Lester Geers, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

Appellee was injured on June 18, 1910, while employed as driver in the mine of appellant at Mary-ville, Illinois. The declaration consists of two counts. The first count is based upon section 18 of chapter 93 of Hurd’s Bevised Statutes for 1909, and the second count is based on section 16 of said Act.

The first count charges, among other things, that the track on which appellee was driving had curves, and that slate and other materials were allowed to accumulate along the side of the track and that a vast quantity of dust accumulated and was allowed to remain along and on the side of the roadway, which was frequently stirred up by the mule and trip of cars, so as to fill the passageway, and by reason thereof the vision of the driver was obscured while hauling coal therein. Appellee bases his right to recover on the presence of all the foregoing conditions, and it is charged in said counts that all of said materials constituted a dangerous and unsafe condition of which the appellant well knew. It is also charged in said count that appellant wilfully permitted appellee to enter said working place without being under the direction of the mine manager before said dangerous condition was made safe.

The second count charges the presence of large quantities of dust along said roadway which rendered the passage of the drivers thereon unsafe and dangerous; that appellant knew of said condition, and that it wilfully failed to cause said track to be sprinkled. The gist of this count is the wilful omission on the part of appellee to see that the track was sprinkled as provided by statute. To said declaration appellant pleaded the general issue. By agreement trial was had by the court without a jury, resulting in a finding and judgment in favor of appellee for $1,800, from which judgment appellant prosecutes this appeal.

There were twelve or more entries, numbered from one to twelve, developed westerly off the main south entry of said mine. Near the point where the eighth entry turned westward off the main south, the latter entry branches into two parts, the said parts coming together again near the mouth of the tenth west entry. Each of said branches contain a track over which cars were hauled. The east branch was used to store empty cars. The west branch was used for storing loaded cars of coal brought in by the drivers in the south side and from thence were pulled by a motor to the bottom shaft to be hoisted. These two branches were known as the “parting” and were separated by a pillar of coal having an opening of sufficient size to permit a driver and mule to pass from one side to another. The loaded cars were delivered by the drivers on the west branch as they came northerly on the main south. Just north of the tenth west entry stands a trapdoor across the track of the main south. North of the. trapdoor the loaded track branches to the west and continues northerly until it again intersects the main line in the main south entry.

From the trapdoor along the left side of the west track as it goes north-there were certain timbers sitting close to the rail, and in and about the base of these timbers and near the rail itself was an accumulation of slate and other materials. After leaving the “parting” on the west track where the loaded cars were run you come to a considerable curve. The exact distance of this curve from said “parting” is not definitely shown by the record. From this point on north the track declines. At about the point of the curve above mentioned the drivers of the cars unhook their mules and run them north some thirty or forty feet to the cross-cut where the mules would turn in and go through to the other track where the empty cars were stored.

Appellant in its brief alleges two grounds for a reversal of this case: “First, because as a matter of fact his (appellee’s) injury was due entirely to the fact that he undertook to leave the car on the wrong side and contrary to the method always employed by him and1 other drivers before his injury; and second, the injury which he received was not the direct and proximate result of any dust which had accumulated in'the entry.” Appellant’s first proposition raises a question of fact, and the only matter to be determined by the court on this proposition is whether the finding of the court was against the manifest weight of the evidence. Appellee is the only witness who testified as to the manner in which the accident occurred.

His testimony is to the effect that about ten o ’clock on the morning in question, he had brought a load of coal in from this “parting” and on arriving at said decline, he unhooked his mule and jumped off the car, intending to alight in the middle of the track; that his vision was ho obscured by the dust caused by the trotting of the mule and the trip of cars that he was unable to see or appreciate at what point in the entry he was; that as he jumped, his car happened to be on the curve, and as a result thereof, instead of jumping in the middle of the track, he landed on the left side of the same against the timbers and gob above mentioned and was thereby thrown back onto the center of the track and was run over by said car. Appellee’s evidence further tended to show that for the want of sprinkling in said entry, dust had accumulated in such quantities between the rails that it reached the axles of the cars, except in the center of the track where the mules had beaten a path, and that the passing of the car and mule stirred up vast quantities of dust and so befogged the atmosphere as to render it impossible to see. Appellee further testified that on the right-hand side of the track, going north, the average distance between the rib and the side of the car was only about fifteen or sixteen inches.

As to the dusty condition of the mine, appellee is corroborated by Drake, an ex-mine examiner who was in the employ of appellant as such mine examiner at the time of the accident. This witness further corroborated appellee with reference to the timber and materials on the left side of the track at the curve where the accident occurred. His testimony being that: “To the left of the curve going north there was timber and loose debris at the time and was there as long as I was employed in the mine.” He further testified that he reported the condition of this entry when he was first employed by appellant and that the condition of the road was unchanged up to the time of the accident. This witness also testified that in going north, on the right-hand side, the coal was overhanging and that while there were some clear spaces on the right-hand side of the track there was not enough room for a mule to be unhooked and pass between a car and the rib down to the cross-cut. Mr. Weschehske, a witness on behalf of appellee, being the man in charge of the electric motor for appellant in its said mine, corroborated appellee with reference to the dusty condition of said entry and also testified that this entry was not sprinkled south of the cross-cut during the month of June; that the dust was so deep that in walking along the entry it would come to the top of his shoes. The witness Kettle, a spragger in said entry at the time of the accident, corroborated appellee with reference to the dusty condition of the entry. This witness also testified that he was in the cross-cut at the time appellee was hurt; that at this point there was a sharp curve in the track and that the gob and material came down to the rail. He further stated that this condition in said entry had obtained since the first of April. This is the substance of appellee’s evidence, and we think, fully warranted the conclusion that at the time of the accident these different conditions testified to by appellee’s witnesses rendered an unsafe condition in said entry.

The only evidence offered by appellant to contradict the evidence offered by appellee consisted of the testimony of Needier, a civil engineer, to the effect that there was three and one-half feet on the east side of the loaded track going north; and that there was some dust on the track, probably an inch or two, but not sufficient to call his attention to the same. This witness testified he knew this parting had been sprinkled many times, but on cross-examination he said: “I do not know of my own personal knowledge when this parting was sprinkled prior to the accident. ’ ’ Polleyshek, mine manager for appellant, at the time of the accident, stated that he was acquainted with the conditions of the entry prior to the injury; that he had walked along this track but had not noticed any particular amount of dust; that this loaded track was sprinkled every Sunday night; that he directed the night foreman to have it done. No witness, however, was put on who testified to having sprinkled the mine or who had personal knowledge that the mine was sprinkled on any particular occasion.

The witness McCormack, boss driver for appellant at the time of the injury, testified: “It was a system to sprinkle there during that time. ’ ’ He further testified: “I don’t recollect whether this roadway had been sprinkled during the month or not.” This witness testified he helped pull appellee from under the car at the time of the injury; that the condition of dust was not such at that time as one with ordinary eyesight could not see a few feet ahead of him. . This is the substance of the testimony of appellant with reference to the dust, sprinkling and other conditions of the mine at the time of the accident.

There is absolutely no evidence in the record to support appellant’s proposition to the effect that' appellee had been in the habit of getting off of the carón the right-hand side of the track. The only testimony as to the habit of appellee with reference to getting off of the car was the testimony of appellee to the effect that he jumped off the front of the car, drove the mule down the center of the track until he came to the cross-cut and that, that was what he was attempting to do at the time he received his injury. The evidence further shows that appellee had been working in this entry but one day prior to the day of the injury. The finding of the court in our judgment is not against the manifest weight of the evidence as to the manner in which appellee received his injury and as to the unsafe condition of the mine, but is supported by a clear preponderance thereof.

It is next contended by appellant "that even though appellee received his injury in the manner claimed by him, said injury was not the proximate result of any dust which had accumulated in the entry.

The point sought to be made by appellant is that the statute with reference to sprinkling, being section 16d of chapter 93, of Hurd’s Revised Statutes of 1909, relates only to the prevention of explosions on account of the accumulation of dust in the mines, and that even though an injury occurs, caused in part by reason of the dnsty condition of the mine and the failure to sprinkle as provided by statute, it would not in law be held as the proximate cause of the injury.

We have examined the cases cited by counsel for appellant in support of his contention and while some of the earlier cases decided by the courts seem to support their position, yet we are inclined to believe that the more recent cases give a somewhat more liberal construction to the language of the provisions of the mining statute than did the earlier cases. Layman v. Penwell Min. Co., 142 Ill. App. 580; Himrod Coal Co. v. Stevens, 203 Ill. 115; Madison Coal Co. v. Hayes, 215 Ill. 625, and Hougland v. Avery Coal & Mining Co., 246 Ill. 609.

We do not, however, rest our decision of this case on the construction to be placed on'the provision in clause “d” of section 16 of the Mining Statute, to the effect that in dusty mines, the mine manager must see that all hauling roads are frequently and thoroughly sprinkled, but rest our decision on the case made by the first count of appellee’s declaration, which charged facts showing, an unsafe condition in the entry and that appellee was allowed to enter the same for work, otherwise than under the direction of the mine manager. The evidence in the record is amply sufficient to sustain the allegations of said count.

The case of Olson v. Kelly Coal Co., 236 Ill. 502, is a somewhat similar case to this. In that case the declaration charged facts showing an unsafe condition in the mine entry where Olson was to do his work, and that while working in said entry he received the injury for which suit was brought. The court at page 505 says: “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 wilful violation of the provisions of section 18 of the Mines and Mining Act, the position of appellant being, that the only evidence of a wilful 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 wilful failure to make such, examination or report, which results in injury to men working in a mine, shall make the mine owner liable for such injury.”

In the case at bar, Drake, the mine examiner, reported the condition of the mine as it existed prior to the injury to appellee, to the mine manager and he further testified that its condition remained the same and unchanged up until after appellee’s injury. Whether he reported its condition to the mine manager or not is unimportant as under the holding of the Supreme Court of this State a mine examiner is vice principal of the mine owner. Olson v. Kelly Coal Co., supra; Davis v. Illinois Collieries Co., 232 Ill. 284.

The court further says in Olson v. Kelly Coal Co., at page 506: “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.” If, as charged in the declaration, appellant permitted appellee to enter its mine to work therein, otherwise than under the direction of its mine manager, knowing of such dangerous condition, before said dangerous condition had been made safe, such conduct on its part constituted on the part of the appellant a conscious violation of section 18 of the Mines and Mining Act and rendered appellant liable to the appellee for a wilful violation of said act. Olson v. Kelly Coal Co., supra; Odin Coal Co. v. Denman, 185 Ill. 413; Marquette Third Vein Coal Co. v. Dielie, 208 Ill. 116; Kellyville Coal Co. v. Strine, 217 Ill. 516; Henrietta Coal Co. v. Martin, 221 Ill. 460; Eldorado Coal & Coke Co. v. Swan, 227 Ill. 586.

It is also appellant’s contention that the evidence does not show the condition of the entry was the proximate cause of appellee’s injury. We think it cannot be seriously urged that the entry where appellee received his injury was not in an unsafe and dangerous condition substantially as alleged in his declaration. When an injury proceeds from two causes operating together, the parties putting in motion one of them is liable therefor the same as though it was the sole cause. The negligent act or omission must be one of the essential causes producing the injury but need not be the sole cause nor the last or nearest cause. It is sufficient if it concurs with the other cause acting at the same time, which in combination with it causes the injury. Waschow v. Kelly Coal Co., 245 Ill. 516; Seith v. Commonwealth Electric Co., 241 Ill. 252; Miller v. Kelly Coal Co., 239 Ill. 626. What is the proximate cause is ordinarily a question of fact to be considered by the jury. Illinois Cent. R. Co. v. Siler, 229 Ill. 390; Pullman Palace Car Co. v. Laack, 143 Ill. 242. Under the above authorities if the unsafe condition of appellant’s mine was one of the causes, although not the only cause, which resulted in appellee’s injury, hut without which cause the accident would not have happened, appellant Would be liable.

No question is made by appellant as to the amount of the verdict. The evidence discloses that the injuries to appellee were severe, consisting of an injury to his back, hip, ankle and wrist, from which injuries he was confined to his home for about ten weeks.

Seven propositions of law were submitted by appellant, all of which were held by the court with the exception of the sixth and seventh. The sixth proposition was to the effect that appellant was not negligent in permitting appellee to enter for work without being under the direction of appellant’s mine manager. There was no error in refusing this proposition, and what we have heretofore said and the authorities we have cited is a complete answer to appellant’s contention that there was error in refusing the same.

The seventh proposition was to the effect that the statute directing that miners shall not be permitted to enter dangerous places in a mine until the same are made safe, except under the direction of the mine manager, has no application to a dusty road in a coal mine, except so far as the questions of explosions is concerned. We think there was no error in refusing this proposition for the reason that the dusty condition of the mine was one of the conditions that went to make up an unsafe condition as set forth in the first count of appellee’s declaration. The question of contributory negligence on the part of appellee does not arise in this case for the reason that the evidence is amply sufficient to establish the allegation of the first count of appellee’s declaration to the effect that a dangerous condition existed m appellant’s mine where appellee was injured; that said dangerous condition was known to appellant, and that, notwithstanding said knowledge it suffered appellee to enter said mine for work, otherwise than under the direction of its mine manager, rendering the act of appellant wilful and thereby eliminating the question of contributory negligence on the part of appellee.

Finding no reversible error in this record the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Pete Bagaini, Appellee, v. Donk Brothers Coal & Coke Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Pete Bagaini, plaintiff, against the Donk Brothers Coal & Coke Company, defendant, in the Circuit Court of St. Clair county, to recover for personal injuries sustained while working in defendant’s mine near Maryville. From a judgment for plaintiff for $10,000, defendant appeals.
    Plaintiff’s amended declaration contained eight counts, the first alleging that on January 29,19.13, room 16, leading off of the second south entry of the eleventh west, in defendant’s mine near Maryville, had been developed about seventy-five feet and contained a railway track on which cars were drawn by mules; that the defendant had permitted other debris to remain along each side of the track, so that the only passageway to and from the face of coal in said room was between the rails of the track, and that the miners traveled between the rails to and from their work; that plaintiff was a miner in that room, his duty being to load coal into cars brought there by drivers, and to prepare and fire shots; that during the afternoon of that day, he loaded two cars and afterwards prepared certain shots in the face of the entry in said room; that defendant negligently permitted the cars to be and remain on the track and thereby obstructed such passageway, rendering it unsafe and dangerous, of which defendant well knew, or by the exercise of ordinary care should have known; that before leaving the room he lighted a fuse in one of said shots; that the said fuse flared and sputtered and extinguished his cap light and left him in total darkness, and that while endeavoring to leave the working place to avoid the explosion of said shot he came in contact with the cars and was thereby caused to fall down and against the debris, being thereby stupified, and, upon arising and endeavoring to find his way out of the room, on account of the darkness and the fall he received, he became confused and bewildered and approached near said shot, and the said shot exploded and injured him, etc.
    The second count charged that defendant negligently allowed debris to remain along and near the track in the room so that miners were prevented from using the sides thereof, and thereby the debris rendered the passage out of the place by miners unsafe in that they were likely to come in contact with the debris and be delayed and injured and that plaintiff, after lighting the shot, attempted to escape and came in contact with the debris and afterwards became injured, etc.
    The negligence charged in the third count consists in the unlawful failure and omission of the mine examiner of defendant to inspect the room, etc., where plaintiff was working.

      The fourth count charged that defendant wilfully failed to keep one side of the haulage road clear of refuse other than timber for a distance of two and one-half feet from the rails in such haulage road for the free passage of men to and from their work.
    The fifth count charged that defendant wilfully failed to maintain places of refuge in the room as required by statute.
    The sixth count charged that defendant wilfully failed to maintain a cross-cut not more than fifty feet from the rib.
    The eighth count charged that defendant ordered and directed plaintiff to fire certain shots in his room and that the mine examiner wilfully failed and omitted to instruct him concerning the handling of explosives. To the amended declaration defendant filed a plea of the general issue.
    It appeared that at the time of his injury plaintiff was thirty-nine years old and had been working at coal mining for many years. He had been examined as provided by statute and held a miner’s certificate. For some time prior to January 29, 1913, the date of his injury, plaintiff had been mining coal in rooms 15 and 16 off of the second south entry in the mine of defendant. In that mine the miners prepared and fired their own-shots. At the time in question room 16 had been driven about seventy feet and was about thirty-two feet wide. The time for firing shots in that mine was from three to three-thirty p. m. On the day plaintiff was injured he had prepared two shots, both placed in the face of the coal, one at the center and the other near the right pib. There was a car track in the center of the room which came within eight or ten feet of the face of the coal, connecting with the track in the entry. About three to three-thirty p. m. on the afternoon of that day, plaintiff fired the two shots. Neither shot did its work, both blowing out the tamping and failing to bring down the coal. One of said shots caused the injury, being the loss of the sight of both eyes.
    The defendant introduced evidence tending to show that plaintiff was an experienced shot firer, while plaintiff testified that he had had some experience with reference to firing shots but did not know about some matters in connection with such work.
    Plaintiff testified in effect that on the afternoon of the day in question he had loaded a car in room 16 and that, with the help of other miners, he rolled the car back from the face about thirty feet; that thereafter he lit the center shot and that while lighting the crosscut shot the exposed powder in the split of the fuse made a long flame and extinguished his cap lamp which he held in his hand; that he then sought to strike matches that he carried in his pocket, but they were damp and would not light; that knowing he was in danger he felt his way to the center of the room, reached the track and proceeded rapidly eastward along the track and that, forgetting the car, he forcibly collided with it, his face striking the coal on the same. The result was that he was thrown backward, fell to the ground and struck his head- against the gob; that upon arising to his feet he became so confused that he did not realize what he was doing or where he was going, and that in his confusion he came in front of the center shot which exploded just at that time and destroyed the sight of both of his eyes.
    The evidence as to whether at the time of the accident there was a car in the room where plaintiff was working as alleged was conflicting, plaintiff being corroborated by one witness, while sevenr>of defendant’s witnesses contradicted plaintiff, some of whom had been in the room for the purpose of examining its condition on the same day when plaintiff was injured and shortly afterwards.
    D. E. Keefe and L. O. Whitnel, for appellant.

      Abstract of the Decision.
    1. Mines and minerals, § 189

      —when instructions in language of statute not improper. In actions under the Miners’ Act (J. & A. If 7475 et seq.), instructions in the language of the statute are not improper though abstract in form, provided instructions are also given applying the law as stated in the instruction to the facts as found by the jury, since otherwise the abstract form of the instruction would be misleading.
    2. Mines and minerals, § 191*—when instruction relative to1 refuge places improper. In an action by a miner to recover for personal injuries as a result of defendant’s alleged negligence in leaving cars standing in the room where plaintiff was firing shots when injured, thereby preventing plaintiff from escaping from the room in time to prevent injury from the explosion of the shots, it is error to give an instruction based on section 15b of the Miners’ Act (J. & A. j[ 7489) relative to refuge places on haulage roads, where it appears that the rib of the room was more than two and one-half feet from the rail of the track, since in such case, under paragraph "e” of the same section, the mine owner is not required to provide refuge places.
    3. Mines and minerals, § 187*—when instruction as to requirements of statute for cross-cuts erroneous as not conformable to evidence. In an action by a miner to recover for personal injuries, where a count of the declaration charges a failure to provide crosscuts as required by section 14 of the Miners’ Act (J. & A. 7488), it is error to give an instruction quoting the requirements of the statute as to cross-cuts in the first room opening off any entry, where the evidence shows that when injured plaintiff w'as working in the sixteenth room opening off such entry.
    4. Mines and minerals, § 187*—when erroneous instruction not in conformity with evidence not cured by subsequent instruction. In an action by a miner to recover for personal injuries sustained while working im the sixteenth room opening off an entry, where a count of the declaration charged a failure to provide cross-cuts as required by section 14 of the Miners’ Act (J. & A. j[ 7488), an erroneous instruction given for plaintiff as to the requirements of the statute as to the first room opening off the entry is not cured by a subsequent instruction given for defendant correctly stating the requirement of the statute as to cross-cuts from rooms situated as that in which plaintiff was working when injured, since the two instructions, taken together, would he misleading, and tend to confuse the jury, rather than enlighten them, as to the issues to be decided.

      Carl Monk and T. M. Webb, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      Sce Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, gante topic and section number.

        See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

5. Mines and minerals, § 91 —what is purpose of statute in relation to cross-cuts. The provisions of the Mining Act (J. & A. If 7475 et seq.) in relation to cross-cuts have reference more particularly to the health of miners than to their safety, the primary purpose of a cross-cut being to furnish ventilation, yet it cannot be said that the statute may not take the question of safety into consideration.

6. Mines and minerals, § 182*.—when question whether miner should he instructed as to handling of explosives for jury. In an action under the Miners’ Act (J. & A. If 7475 et seq.), it is a question of fact for the jury whether an experienced miner holding a certificate as such under the provisions of the statute, but whose business is not that of an experienced shot firer as contemplated by the statute, should be instructed by the mine manager as to the handling of explosives and whether the failure so to instruct is negligence.

7. Pleadings, § 451*—how question whether evidence tends to support declaration or count thereof raised. In an action for negligence a motion made at the close of all the evidence to exclude the evidence and to instruct the jury to find defendant not guilty raises the question whether plaintiff’s evidence tends to support his declaration or some count thereof.

8. Mines and minerals, § 148*—when evidence sufficient to support counts in declaration for personal injuries. In an action by a miner to recover for personal injuries sustained while firing shots in defendant’s coal mine, where it was alleged that owing to defendant’s negligence in leaving a car on the track in the room where plaintiff was working, plaintiff, whose cap lamp had been extinguished by the flame of one of the shots, was prevented from escaping from the room in season to prevent his being injured by the explosion of the second shot, plaintiff’s evidence examined and held to tend to support certain counts in the declaration.

9. Trial, § 195*—when motion to direct verdict for defendant properly refused. In an action for negligence it is not error to refuse a motion to exclude the evidence and to find defendant not guilty where plaintiff’s evidence tends to support some counts of the declaration.

10. Trial, § 211*—when motion to instruct jury to disregard counts of declaration properly refused. It is error to refuse a motion to instruct the jury to disregard certain counts of the declaration where the evidence does not show a right of recovery on such counts.

11. Negligence, § 242 —when refusal of instruction on proximate cause erroneous. In an action to recover for personal injuries alleged to have been sustained as a result of defendant’s negligence, it is error to refuse an instruction to find defendant not guilty if the jury found that defendant’s negligence was not the sole proximate cause of plaintiff’s injury.

12. Instructions, § 4*—when court should give instruction defining proximate cause. In an action to recover for personal injuries alleged to have been sustained as a result of defendant’s negligence, where an instruction is given to find defendant not guilty if the jury find that his negligence was not the sole proximate cause of plaintiff’s injury, an instruction defining “proximate cause” should be given- in connection with the first instruction where none is tendered by either party.

13. Instructions, § 137*—when inapplicable instructions properly refused. It is not error to refuse instructions which do not state correct principles of law or are not applicable to the facts in the case.

14. Appeal and error, § 1410*—when verdict set aside because of insufficiency of evidence. While the Appellate Court should not disturb a verdict unless such verdict is against the manifest weight of the evidence, yet where other errors intervene which may have affected the verdict the court should much more readily set the verdict aside and remand the cause for another trial.

15. Damages, § 141*—when verdict for personal injuries not excessive. In an action by a miner to recover for personal injuries, where as a result of the accident plaintiff lost the sight of both eyes, and where at the time of the accident plaintiff was thirty-nine years old, a time of life which made it hard for him to take up a new line of employment, a verdict for plaintiff for $10,000 held not so excessive as to require a reversal.


text:
    Dolly Morgan, Administratrix, Appellee, v. Carterville & Big Muddy Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Williamson county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Dolly Morgan, as administratrix of the estate of James Morgan, her deceased husband, plaintiff, against Carterville & Big Muddy Coal Company, defendant, to recover for the death of the husband while employed as a shot firer in defendant’s mine. From a verdict for plaintiff for $2,000, defendant appeals.
    This case was originally appealed to the Supreme Court, as it was contended that the Workmen’s Compensation Act of 1911 was unconstitutional, but as both parties conceded that the act was invalid, the Supreme Court certified the case to the Appellate Court. See Morgan v. Carterville & Big Muddy Coal Co., 264 Ill. 533.
    The cause was tried in the Circuit Court on the theory that plaintiff must recover, if at all, on the ground that defendant was guilty of common-law negligence, resulting in an injury, which caused the death of plaintiff’s intestate, and that plaintiff was in the exercise of due care for his own safety at the time.
    Denison & Spiller, for appellant; Mastín & Sherlock, of counsel.
    Neely, G-allimore, Cook & Potter, for appellee.

      See Illinois Notes Digest, Vols. XI to XV,' and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. 'XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

Abstract of the Decision.

1. Mines and minerals, § 107 —when duty of mine examiner to warn shot firers of dangerous condition of pillars between entries. Where the thickness of pillars between two entries in a mine at a considerable distance from the mouths of the entries has been reduced to less than one-half of that at the mouths of the entries so as to become too thin because of the failure to use sights in driving one of the entries, and such condition is known to the mine examiner, or would have been known to him if he had exercised reasonable care, it is his duty to warn shot firers of such dangerous condition, especially where a cross-cut is being driven from the opposite entry.

2. Mines and minerals, § 179*—when evidence sufficient to sustain finding that negligence in driving entries without notifying shot firer proximate cause of death. In an action by the administratrix of the estate of a mine shot firer to recover for the death of such shot firer, alleged to have been due to negligence in driving two parallel entries so that at a considerable distance from the mouths of such entries the pillar between the entries was less than one-half of that at the mouths of the entries and was blown in upon deceased when a shot was fired in the cross-cut being driven from the entry opposite to which he was working, evidence held sufficient to sustain a finding, that the proximate cause of the injury resulting in death of deceased was the negligent act in so driving the pillars without notifying the shot firers of such dangerous condition.

3. Mines and minerals, § 178*—tohen evidence sufficient to sustain finding that shot firer not guilty of contributory negligence. In an action by the administratrix of the estate of a shot firer to recover for the latter’s death, alleged to be due to negligence in driving two parallel entries in the mine so that the pillar was too thin at a point a considerable distance from the mouth of the entry, where a shot was fired in a cross-cut being driven from the opposite entry, resulting in the wall of the pillar being blown upon plaintiff’s decedent, and to failure of defendant to notify deceased of such dangerous condition of the mine, where it appeared that the entries were driven with the pillars of the required thickness for a distance of seven hundred or eight hundred feet from the mouths of the entries to a cross-cut sixty feet from where deceased was working, and that the workmen had no light except from their candles, and had not been warned that the pillar had been narrowed at the place where deceased was working, evidence held sufficient to sustain a finding that deceased was not guilty of contributory negligence.

4. Mines and minerals, § 122 —when evidence sufficient to sustain finding that shot firer did not assume risk of injury from explosion. in an action by the administratrix of the estate of a shot firer to recover for the latter’s death, alleged to be due to negligence in driving mine entries so that the pillar was too thin at a place where a cross-cut was being driven from the opposite entry to that in which deceased was working, resulting in the wall thereof being blown in upon deceased when a shot was fired in the crosscut in the entry opposite deceased, evidence held sufficient to sustain a finding that deceased did not. assume the risk of such explosion as incidental to his employment, it appearing that he had no knowledge of the condition of the pillar.

5. Instructions, § 151*—when refusal of requested instructions not erroneous. It is not error to refuse proper requested instructions that are covered by given instructions.


text:
    Acquilla I. Brown, Appellee, v. J. E. Moudy et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    Statement of the Case.
    Action under the Dramshop Act, sec. 9 (J. & A. 4609), by Acquilla I. Brown, plaintiff, against J. E. Moudy, Walter Satera, A. G-. Rinehart and Charles Gualdoni, defendants, for damages for injury to plaintiff’s means of support as the result of the sale of intoxicating liquor to plaintiff’s husband. From a verdiet for plaintiff against defendants Satera, Binehart and Gfualdoni, such defendants appeal.
    Plaintiff’s husband with his family moved to the Town of Sesser, in Franklin county, about the month of September, 1908, and at that time he was about fifty years of age. Prior to moving.thereto he was a school teacher and farmer, but had never accumulated any property to speak of. He had had a good deal of sickness in his family, which involved a considerable expense for a man of his .means. Prior to his moving to Sesser he was a man of good habits, steady, industrious, and had furnished his family a comfortable support. About the month of March, 1909, after moving to Sesser, plaintiff’s husband with his son, Baymond Brown, engaged in the butcher business until February 20, 1911. Their bank account introduced in evidence showed that their business was reasonably prosperous, and that during the period of two years it amounted to more than $25,000. On February 20, 1911, plaintiff’s husband bought out his son’s interest in the business and ran the business alone until about October 1, 1911, when the son bought out the father.
    It further appeared that some time after engaging in the butcher business plaintiff’s husband began the use of intoxicating liquors; that he purchased said liquors of defendants and that the habit of drinking grew on him until it affected him to the extent that he neglected his business, and was frequently intoxicated to such an extent that he had to be assisted home. It also appeared that the trips to the saloon of defendants were of frequent daily occurrences and that at times it would be necessary for those in charge of the shop to go to the saloon for the purpose of bringing plaintiff’s husband back to the shop to look after his business; that the butcher business conducted by plaintiff’s husband ran down, and that finally he closed the same out and soon disposed of the funds derived therefrom, amounting to something like $1,200.

      It further appeared that in a fit of intoxication plaintiff’s husband shot and killed a man and was incarcerated in the county jail for several months awaiting his trial.
    The court gave the following instructions for plaintiff :

      1 ‘ The jury are instructed as a matter of law that the fact, if it is a fact, that the plaintiff did, during the time it is charged in her declaration that the defendants sold and gave intoxicating liquors to her husband, which caused his habitual intoxication, engage in keeping boarders or carried on the business of conducting a millinery store, will constitute no defense whatever for the sale or gifts of intoxicating liquors to her husband, causing his habitual intoxication, provided you find from a preponderance of the evidence that the defendants did make such sales which resulted in such intoxication.
    “You are instructed that every dramshop keeper is expressly prohibited by the statute of the State from selling or giving intoxicating liquor to a person who is at the time of such sale or gift in an intoxicated condition; and if you believe from a preponderance of all the evidence in this case that the defendants did repeatedly sell or give intoxicating liquors to plaintiff’s husband when he was in an intoxicated condition, and if you further believe from the evidence that such sale or gifts of intoxicating liquors resulted in injury to plaintiff’s means of support, then such sale or gifts of intoxicating liquors may be regarded by you as wilfully and wantonly made.
    “You are instructed that it is expressly contrary to the statute of Illinois for any person to sell or give intoxicating liquors to a person known to be an habitual drunkard; and if you find from the evidence in this case that the defendants, well knowing that plaintiff’s husband was an habitual drunkard, and that after having sucb knowledge did continue to sell or give him
      intoxicating liquors, which caused him to remain and be intoxicated* then such sales would be regarded by the law as having been wilfully and wantonly made, and will lay a proper foundation for the awarding of exemplary damages.”
    Abstract of the Decision.
    1. Intoxicating liquobs, § 229

      —when evidence sufficient to sustain finding that wife injured in her means of support due to intoxication of husband. In an action under the Dramshop Act, see. 9 (J. & A. j[ 4609), hy a wife against saloon keepers for damages for injury to her means of support, evidence held sufficient to-sustain a verdict for plaintiff.
    2. Intoxicating liquobs, § 172*—when wife injured in her means of support by intoxication of husband. A wife is injured in her means of support due to the intoxication of her husband when her husband’s ability to furnish her with the comforts of life is lessened or destroyed, although she may not be deprived of the hare necessities of life.
    3. Husband and wife, § 5*—what is extent of duty of husband to support wife. The duty of a husband to support his wife is not limited to the bare necessities of life, but it includes the comforts of life as well, and whatever is suitable to her situation and the husband’s condition.
    4. Intoxicating liquobs, § 251*—when instruction on damages for injury to support not improper as not based upon evidence. In an action by a wife against saloon keepers under the Dramshop Act, sec. 9 (J. & A. | 4609), for damages for injury to her means of support due to the intoxication of her husband, an instruction that in estimating plaintiff’s damages, if the jury found for plaintiff, they should take into consideration the extent to which plaintiff’s husband neglected his business and the amount of money and property squandered hy him, if proven in consequence of such intoxication, so far as the evidence might enlighten the jury, held not erroneous because not based upon evidence where there was sufficient evidence that plaintiff’s husband squandered and wasted his money.

      Layman & Johnson, W. H. Nelms and F. P. Brennan, for appellants.
    F. M. Guinn and Robert E. Hickman, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI tQ XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

5. Intoxicating liquors, § 249 —when instruction not improper as assuming that sales or gifts of liquor constituted cause of action. In an action by a wife for damages for injury to her means of support due to the intoxication of her husband, under the Dram-shop Act, sec. 9 (J. & A. j[ 4609), an instruction that the fact that plaintiff did, during the time it is charged in her declaration that defendants sold and gave intoxicating liquors to her husband which caused his habitual intoxication, engage in keeping boarders or in conducting a millinery business, did not constitute any defense to the sale or gifts of intoxicating liquors to her husband, causing his habitual intoxication, provided the jury found from a preponderance of the evidence that defendants did make such sales which resulted in the intoxication, held not erroneous as assuming that the alleged sales or gifts of intoxicating liquors constituted the cause of action, instead of the intoxication caused by the same.

6. Intoxicating liquors, § 251*—when instruction on damages for injury to means of support of wife not erroneous. In an action by a wife for damages for injury to her means of support due to the intoxication of her husband, under the Dramshop Act, sec. 9 (J. & A. K 4609), an instruction that in order to sustain a claim for injury to her means of support it was not necessary to show that the wife had been actually without support or had been at any time, in whole or in part, deprived of means of support, but that means of support relate to the future as well as to the present, and that it was sufficient if she show that the sources to her future support had been cut off or diminished below what was reasonable and competent for a person in her station in life, and below what they otherwise would have been held proper.

7. Intoxicating liquors, § 233*—what damages recoverable by wife for loss of means of support. The damages for injury to means of support which a wife may recover because of the intoxication of her husband, under the Dramshop Act, sec. 9 (J. & A. 1f 4609), include future as well as present support, and it is sufficient if she show that the sources of her future support have been cut off or diminished below what is reasonable and competent for a person in her station in life and below what they would otherwise have been.

8. Intoxicating liquors, § 249*—when instruction on liability for sale or gift of not erroneous. Instructions in an action by a wife for damages for injury to her means of support, under the Dram-shop Act, sec. 9 (J. & A. If 4609), held not open to the objection that they informed the jury that any sale or gift of intoxicating liquor to a person in an intoxicated condition must be regarded as wilfully and wantonly made, where such instructions did not attempt to direct a verdict and there was evidence to support them.


text:
    William Neeley, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 233

      —when making of false statements hy applicant bars recovery on policy. The beneficiary in a life insurance policy is not entitled to recover thereon where the applicant made false statements as to whether she was suffering with disease at the time the policy was issued.
    Appeal from the City Court of Bast St. Louis; the Hon. Robert H. Blannigan, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action of assumpsit by William Neely, plaintiff, against the Metropolitan Life Insurance Company, defendant, to recover on a life insurance policy on the life of the daughter of plaintiff. From a judgment for plaintiff, defendant appeals.
    William P. Launtz, for appellant.
    James Gr. McHale and Edgar P. Holly, for appellee.

       See Illinois Notes Digest, Vols. XI to XV, and Cum.ilative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

2. Witnesses, § 33 —when wife incompetent witness for husband. In an action on a life insurance policy by a husband as beneficiary, the wife of plaintiff is an incompetent witness in his behalf under Rev. St., ch. 51, sec. 5 (J. & A. U 5522.)

3. Instructions, § 151*—when instruction covered by given instructions properly refused. An instruction is properly refused where it is covered by given instructions.

4. Instructions, § 96*—when instruction on credibility of witness proper. In an action on a life insurance policy against a corporation, an instruction that if the jury believed from the evidence that plaintiff had wilfully sworn falsely as to any material matter on the trial then they might disregard his entire testimony, held improperly refused, since, one of the parties being a natural person, it was proper to direct the attention of the jury to his testimony and not draft the instruction so as to apply to both parties, as should be done where both parties were natural persons.


text:
    The People of the State of Illinois for use of Lou Stucker, Appellee, v. Lacey Kirby, Appellant.
    (Not to be reported in full.)
    Appeal from the County Court of Saline county; the Hon. C. D. Stilwell, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Proceedings by the People of the State of Illinois for the use of Lou Stucker, plaintiff, against Lacey Kirby, defendant, charging defendant with being the father of plaintiff’s bastard child. From a judgment for plaintiff, defendant appeals.
    A witness, Durfee, called by defendant testified that he had had intercourse with plaintiff, the first occasion being about the middle of May, 1914, some five or six days subsequent to the day on which the prosecuting witness testified that she had intercourse with defendant. He was asked as to other alleg’ed acts of intercourse with said witness, to which questions objections were made by plaintiff and were sustained by the court. The record shows that the objection to these questions was sustained for the reason that the questions did not limit the time to the period of gestation. Later in the trial the court permitted a full examination of this witness as to other acts of intercourse with plaintiff had at any time during the months of May and June. The child was born on the 29th day of January, 1915. The 29th of June, 1914, would be just seven months preceding the birth of the child. There was nothing in the evidence to show that this, child was not a fully developed child.
    The court gave the following instructions:
    “In passing on the weight and credit to be given to the prosecuting witness, you should take into consideration, so far as the same is shown by the evidence, her condition immediately before and at the time of the act of intercourse which caused conception in this case, and if you believe, from all such facts and circumstances, that the bastard child was begotten by the defendant, at the time, as testified to by the complaining witness, then you should so find by your verdict.
    “This case is a prosecution by the People of the State of Illinois, and the complaining witness, Miss Sthcker, is not a party to the suit, and in considering her evidence in the case you should pass upon the same in the light of the law, as given to you by the Court, and the parties who have a direct and material interest in the case.
    “You are instructed by the Court that by law the defendant is a competent witness in his own behalf, still in passing upon his evidence you have a right to take into consideration his interest in the result of the suit, his demeanor while on the stand, his conduct at the trial, so far as the same is disclosed by the evidence, and if from all the evidence and circumstances in the case you believe from a greater weight thereof that he is the father of the child in question, then you should so find by your verdict.
    Abstract of the Decision.
    I. Bastabds, § 12

      —when County Court of county in which defendant served has jurisdiction. The County Court of the county in which a defendant in bastardy proceedings is found and served with process has jurisdiction of such proceedings under Rev. St. ch. 17, sec. 1 (J. & A. If 703).
    2. Bastabds, § 64*—when exclusion of evidence harmless error. In bastardy proceedings where a witness for the defendant testified that he had had intercourse with prosecuting witness five or six days subsequent to the day on which the prosecuting witness testified that she had intercourse with defendant and eight and one-half months before the birth of the child, held that the exclusion of evidence as to subsequent intercourse with defendant was not prejudicial error where the court subsequently allowed the witness to testify as to intercourse during the following six weeks, it appearing that there was no evidence that the child was not fully developed.
    3. Bastabds, § 64*—when instruction not prejudicially misleading. In bastardy proceedings, an instruction to the jury that in considering the weight to be given to the testimony of the prosecuting witness they should take into consideration, so far as the same was shown by the evidence, her condition immediately before and at the time of the act of intercourse, which caused the conception; and if the jury believed from all such facts and circumstances that the bastard child was begotten by defendant at the time testified to by the prosecuting witness, then they should so find in their verdict, held not prejudicially misleading.

      “If the jury believe that the prosecuting witness was mistaken as to the day that the alleged intercourse occurred, yet if you believe from the greater weight of the evidence that the defendant is the father of the child, then you should find the defendant guilty.”
    H. N. Finney and Lewis, Ronalds & Lewis, for appellant.
    Sam Thompson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, sam topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

4. Bastabds, § 64 —when instruction that prosecuting witness not party not prejudicially erroneous. An instruction in bastardy proceedings that the prosecuting witness was not a party to the suit, held not reversibly erroneous.

5. Bastabds, § 6*—when prosecuting witness party to proceedings. The prosecuting witness in bastardy proceedings is a party to such proceedings.

6. Bastabds, § 34*-—when instruction on credibility of defendant as witness not erroneous. In bastardy proceedings, an instruction that, in determining the weight to be given to the testimony of defendant," the jury should take into consideration his interest in the result of the suit, his demeanor while on the stand and his conduct at the trial so far as the same was disclosed by the evidence, held not erroneous.

7. Bastabds, § 64*—when instruction not prejudicially erroneous. In bastardy proceedings, an instruction that if the jury believed that the prosecuting witness was mistaken as to the day that the alleged intercourse occurred, yet if they believed from the greater weight of evidence that the defendant was the father of the child, then they should find for the defendant, held not prejudicially erroneous although the prosecuting witness may have been mistaken as to the day, as the exact day is unimportant.

8. Bastabds, § 19*—when prosecuting witness need not show exact day of intercourse with defendant. In bastardy proceedings it is not necessary that the prosecuting witness show the exact day of intercourse with defendant, from which conception is alleged to have resulted.

9. Bastabds, § 22*—what degree of proof required to establish case. The prosecuting witness in bastardy proceedings cannot be required to establish her case by a “clear” preponderance of evidence, a preponderance being sufficient.

10. Bastabds, § 62*—when verdict not disturbed as against weight of evidence. In bastardy proceedings where the evidence is conflicting, the verdict of the jury will not be disturbed as against the weight of evidence where no serious errors in the rulings of the court have intervened.