text:
    J. C. Amsler, Appellee, v. A. Bruner, J. S. Abbott, F. L. Dewey, G. B. West, D. E. Thoeman and the firm of F. C. Jack & Company, composed of F. C. Jack and D. A. Bartlett, Trading as Leighty Oil Company, Appellants.
    1. Assumpsit—pleading. Where a person expressly contracting to do work sues on the common counts, but defendant sets up in his pleas the express contract, a failure to perform and resulting damages, and issue is joined thereon, any omission in the declaration is supplied.
    2. Assumpsit—common counts. A person who has contracted to drill a well for a specified amount, on proving performance of the contract and the reasonable value of the work, may recover under the common counts an amount not exceeding that specified in the contract.
    3. Contracts—when severable. If the part of a contract to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to he performed or is left to be implied by law, such a contract is in general severable, and the same rule holds where the price to he paid is clearly and distinctly apportioned to different parts of what is to be performed, though the latter in its nature is single and entire.
    4. Contracts—when severable. A contract to drill a well at a certain price per foot, to clean out the well when finished at a certain price per day, and to draw an outside casing free of charge, is severable.
    5. Customs and usages—when may be proved. In an action on a contract to drill an oil well, where it is contended that the work is not completed, and the water is not properly cased off, the contract not fixing the point at which a well is completed, and being silent as to the duties of a driller in shutting off water, evidence is admissible to prove a usage or custom as to what constitutes the completion of an oil well, and to prove a custom as to the duties of a driller in shutting off the water.
    6. Customs and usages—when defective instruction is cured. A defective instruction as to the establishment of a custom, may be cured by another instruction which defines what is necessary to constitute a custom in a locality and states when such custom enters into and forms a part of contract.
    7. Instructions—when defense need not be referred to. A person contracting to drill a well, suing on the common counts, and trying his case upon a theory that he had completed his contract and was entitled to the value of the service, is entitled to an instruction on such theory and the instruction need not refer to the defense that there was an express contract.
    Appeal from the Circuit Court of Crawford county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 7, 1912.
    S. J. Gee and Parker & Eagleton, for appellants.
    Frederick G. Viger, J. A. MacHatton and Duane Gaines, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

Appellee recovered a judgment against the appellants for $4193.75 in the Court below, and it is sought by this appeal to reverse the judgment.

On May 15, 1909, appellants by A. Bruner, wrote the appellee a letter soliciting him to drill a well for the appellants on the Leighty farm in Lawrence County, Illinois, and in the letter said:

“So if.you would like to try some of our work I can give you a well to drill on the Leighty farm right away. We could furnish the rig on that farm or you can furnish it yourself; just as you like. And we will pay the same as we are now paying Dan Boggs who is drilling for us by furnishing his own rig. The price where the contractor furnishes his own rig and machinery is $1.35 a foot less $175.00 for fuel and water; and ten and twenty cents a foot for pulling the outside casing and $15.00 for cleaning out after the first two days; and where we furnish the rig, tank, water and fuel the price is $1.25 a foot, with same regulations for cleaning out but the contractor pulls the outside casing free, so you can have it either way. if you wish to try it, which if you do please let me know as soon as possible.”

To this the appellee, on May 7th, replied saying:

“Tour letter received, in reply will say I am laying down my tools for the Ohio Oil Company at a better price than you offer. They pay $1.35 less $100.00 for fuel and no charge for water, 20 and 10 for pulling casing and $15.00 per day for cleaning out from day well is finished. However, as I have two strings adjoining your Gee farm I might take the matter up with you personally. Would like to know how you case your wells. If you wish to take this matter up will come over and see you.”

On the 21st of May the appellants wrote appellee a letter advising him that they would not like to advance the price and that they had offered him all they would; and in this letter they said:

“We had some misunderstanding with one of our contractors whose contract _ was based entirely upon what the Ohio Oil Co., do with and pay their contractors, and consequently the matter was laid before the Ohio officials in open discussion and the matter settled on what they said about it and consequently we know all about what the Ohio do and pay., And we think if you will observe closely you will find that our rules and prices agree with theirs to the letter; that is unless they have changed within the last month * * * We case our well by putting in about 215 feet of 12½ inch casing, one thousand feet of 10 inch, 1190 feet of-8¼, 1380 feet of 6⅝ and then line with 5-3/16 to the sand, then drill the well in, put the shot in with loaded anchor and pull the liner to be shot then after the well is shot put the liner back into the well and commence cleaning out, and let the liner follow until is reaches its seat. By doing this there is no danger of getting stuck in cave nor of putting in unnecessary time, fighting cave, etc.”

To this the appellee replied and said:

“I will drill your well, you furnishing rig, fuel, water and casing as per your agreement for $1.25 per foot. However, should we be unable to pull casing with lines and blocks who furnishes the jacks? This should be understood before hand. Yesterday the Ohio sent out word all wells over 1600 feet deep would be $1.50 per foot.”

And on May 26th, appellants replied and stated that they would have their Mr. Curley to get the rig ready and advised appellee that he would not need jacks for drawing the casing, etc. This was all of the correspondence between the parties with reference to this work and they had no conversation. The appellee proceeded to drill the well 1723 feet down to what was known as the “Tracey Sand” and put the casing in, and at this point Mr. Curley, by direction of Mr. Bruner, directed appellee’s driller to quit the drilling and then the appellants took the hole drilled and “shot the well.” After the well had been shot the appellee spent one hundred thirty days in cleaning out the well. At the time that appellee was directed to quit drilling and the well was shot, there was water in the well and when the liner was replaced it was not seated firmly and the water still remained in the well, and it was claimed by witnesses for appellants that the water had not been properly cased off but some of the witnesses for appellee testified that the water had been properly cased off and that the cause of the water remaining in the well was due to the acts of the appellant in shooting the well. A great deal of testimony was devoted to the question as to whether or not the well had been properly cased, and the custom and usage, as to the duties of a driller in casing off the water and as to the time when the drilling was completed entered largely into the controversy in this case.

The declaration in this case consisted of the common counts, to which appellants filed a plea of general issue and three special pleas, setting up in various forms the contents of the letters, the failure of appellee to properly sink the well, and damages resulting to the appellants by reason thereof. To these special pleas the appellee filed four replications averring- performance of the contract set up in the pleas, that the water did not run into the well until long after it had been completed and accepted by defendants; that the well was drilled in a workmanlike maimer, that the casing was properly set and the water shut off, and that the appellants had not expended a large amount of money in the completion of the well, and averring performance generally and specifically of the contracts as set up in the plea. To these replications several rejoinders were filed reaffirming the failure to complete the well and that damages did accrue to the appellants by reason of appellee’s failure to keep his promise; and denying that the well was accepted by the appellants.

Upon the trial of the case the appellee introduced testimony showing the drilling of the well to the depth of 1723 feet, the cleaning out for 139 days, and fixing the reasonable value of the drilling at $1.25 per foot ■and of the cleaning out at $15.00 per day, and rested his case. The appellants then introduced the several letters, also evidence of the failure of appellee to complete his well, shut off the water and of the amount of damage resulting by reason thereof. The appellee then introduced testimony tending to show that at the time the well was shot it had been accepted by the appellants, that the water had been properly shut off and that the well as drilled by appellee had been appropriated by appellants and deepened to another and better oil sand.

Appellants now insist that in as much as it appears from these letters that there was an express contract as to this work, that the appellee could not recover upon his declaration in this case, which contains only the common counts, and that the court would not be authorized to enter a judgment, and says, “The determination of this question is important in considering every phase of the case. It is important in determining the averments contained in the declaration; it is important in measuring the competency of the evidence introduced and it is important in considering the correctness of the instructions given to the jury.”

Much of the argument of counsel for appellants has been devoted to a discussion of this question and we have given it very careful consideration. In arriving at a conclusion upon this matter it should be borne in mind that the object of pleading is to form an issue and give the opposite party notice of the claim made, or defense relied upon. While it is true that the declaration in this case contains only the common counts, it is also true that the defendant filed three special pleas setting up, as they claim, the express contract, the failure to perform and the damages resulting. To this the plaintiff filed a replication averring performance of the contract set up; that the water did not run into the well until long after it had been completed and accepted by the appellants, that the well was drilled in a workmanlike manner, that the casings were properly set and water shut off, and averring generally the performance of the contract set up. To this replication the several rejoinders were filed re-affirming the failure to complete, and the damages resulting, and denying the ac-

ceptance by the defendant. Even if the contract was not set np in the original declaration, it was presented by the pleas. Its performance and acceptance of the well were averred in the replication and traversed by the rejoinders. While the pleadings were irregular, the contract together with the breaches thereof were, when the pleadings are considered as a whole, fully presented. The issues were made up presenting clearly and concisely the matters in dispute between the parties. The evidence was introduced upon the several issues by both parties, and while it was irregular we think that the jury was fully advised upon the proper issues and that the case was properly tried. In the case of Wallace v. Curtiss, 36 Ill. 156, the plaintiff had failed to set forth in his declaration the necessary averments to entitle him to recover, and upon this question being made the Supreme Court said, “There is no such allegation found in the declaration, but it is made the ground of defense in the special pleas that no inspector was chosen, as provided for in the contract, so that the defendants themselves put in issue that which was omitted in the declaration. The defendants tendered that issue, and the plaintiff had a right to accept it, and go to trial on it. He might have demurred to the pleas as being no answer to the declaration, but he chose to take the issue as tendered. The pleas cured the omission. 1st Chitty on Pleading, 673; Elliott v. Stuart, 15 Maine, 160; Slack v. Lyon et al., 9 Pick. 62. The issues were not alone on the facts stated in the declaration, but upon the agreement stated in the special pleas, and they may be taken as amendatory of the declaration, of the issue and verdict, in order to favor the justice of the case. 3 Bevard (S. C.) 362. Col-cock, J., said in this case, ‘It is unnecessary to go into the general question, because the defendant, by his pleading, supplied the deficiency of the plaintiff’s declaration, and by the plea the agreement is specially set forth and made the subject of the issue referred to the jury. ’ ” This doctrine is re-affirmed, and the above quotation made in the case of Rubens v. Hill, 213 Ill. 537. We are of the opinion that appellants by setting up the express contract in the pleas and issue being joined thereon, supplied any omission that may have been wanting in the declaration.

We think, however, that under the holdings, of our Courts, and under the claim and evidence offered by appellee that he had completed his contract and was seeking to recover the value thereof, not exceeding that specified in the contract, that could be recovered under the common counts. It is said in the case of Spencer v. Dougherty, 23 Ill. App. 399, “It was next urged that no recovery can be had upon the common indebitatus assumpsit counts, as there existed a special contract between the parties, and appellee should therefore have declared specially. It is well settled that when a special contract has been substantially performed by the plaintiff and nothing remains to be done but the payment of the money, a recovery may be had under the common counts. ’ ’ Citing Lane v. Adams, 19 Ill. 167; Childs v. Fischer, 52 Ill. 205; Taylor v. Renn, 79 Ill. 181. In the same opinion the Court further says, “And the same principle is held to apply when the work has been accepted and appropriated by the defendant, although it was not done within the time and in the exact manner provided for in the contract, leaving the defendant to recoup any damages he may have sustained by a failure by the plaintiff to perform the contract according to its precise terms.” And citing Holmes v. Stummel, 24 Ill. 370; and many other cases. We think this doctrine is fully sustained by the case of Foster v. McKeown, 192 Ill. 339.

It is also claimed by appellants that this was an entire contract and could not be apportioned. They seem to be of the idea that this contract was sought to be enforced in fragments. The evidence of appellee discloses that he had performed the contract in its entirety, except to draw the outside casing, which was to be done free of charge; but it no where appears in this evidence that any specific request was made upon appellee to draw the outside casing, but on the contrary it appears that it was retained and the well drilled to a deeper oil sand; but waiving this, it appears to us that this contract was clearly severable, as by its terms the part of drilling the well was to be paid for at $1.25 per foot, the cleaning of the well at fifteen dollars per day, and the drawing of the outside casing to be done free of charge. If a part to be performed by one party consists of several distinct and separate items, as in this case, and the prices to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable; and the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire. Siegel, Cooper & Co. v. Eaton & Prince Co., 165 Ill. 558. Keeler v. Clifford, 165 Ill. 544.

Complaint is also made that the Court erred in permitting tiie appellee to prove that a usage or custom existed as to what constitutes the completion or ending of the drilling of an oil well. The letters offered in evidence in this case do not fix the point at which a well is completed and ready to be shot, and it seems that a custom did exist in oil fields as to when the proper time was to stop the drilling. The appellants also offered in evidence the custom as to the duties of a driller in shutting off the water. The letters offered were also silent upon this question and we are unable to say that any error was committed by the court in allowing the -witnesses to testify as to the usage or custom upon these matters, or either of them.

Objection is made to the giving of appellee’s first instruction upon the ground there was no evidence in the record showing or tending to show that Curley had authority to pass upon or accept the work in drilling the well. Curley testified that Bruner had directed him. to' stop the drilling as soon as they were through the sand, and that he did so under Bruner’s direction. Curley and another witness testified that after the well was drilled to the depth claimed he told them to stop drilling, and that he, on behalf of Bruner took the well and shot it, and that Bruner had directed him to do this; those were matters to be considered by the jury in determining whether or not Curley was the agent of the defendant, and his authority. Elis authority did not depend alone upon the oral statements but upon his acts and conduct in connection with this matter ; at least there was enough in it to warrant the instruction given.

We think the criticism upon the second instruction was without merit, as there is evidence tending to show that the cleaning was done under the direction of the defendants, and they were entitled to an instruction upon this theory.

The criticism upon the third instruction is hot well taken as the evidence admitted by the court tended to show what was necessary to complete a well; and the further criticism, that there was no instruction given telling the jury how a custom is established if defective, is cured by appellants ’ fourth instruction which defines what is necessary to constitute a custom in a locality, and when such custom enters into and forms a part of the contract.

Instruction No. 7 is also criticised because it takes from the jury the defense insisted upon, that there was an express contract. The appellee offered testimony and tried his ease upon the theory that he had completed his contract, and was therefore entitled to the value of the service, and it certainly would be true that if he had completed his contract, and the appellants had appropriated the benefits to their own use, that they would be liable for the reasonable worth of the services, and appellee was entitled to an instruction upon this theory. It was not necessary to incorporate appellants’ defense in this instruction, and we think this doctrine is approved in the case of Mt. Olive Coal Company v. Rademacher, 190 Ill. 538. But appellants’ rights were fully protected herein by their ¡instruction No. 5, 20 and 21, which advised the jury fully that if he had failed to complete the contract that lie could not recover, or that even if completed he was entitled to damages if not performed according to the terms of the contract.

Instruction No. 9 is criticised because it entirely ignores any misrepresentation made by Kapral to Bruner at the time of the alleged acceptance. Even if this were true it is entirely cured by appellants’ second instruction which advised the jury that if appellants were led to accept the work by statements that were untrue, then the appellants would not be bound by such acceptance.

We think the criticisms made upon the several instructions are without merit.

Upon the trial of this case the appellants contended that the appellee in drilling the well had not properly placed the casing so as to shut out the water, and that after the well was shot the liner failed to reach a proper seat and that the oil still remained in the water and that this was not a completion of the work according to the terms of the contract and the usages existing in that oil field. Upon the other hand, it was claimed by the appellee, and the testimony of his witnesses tended to show, that he had properly drilled the well; that while there was some water, that was known to appellants, and knowing that they received the well and shot it; that the liner was replaced, reached a proper seat and shut out the water for many days and that the fault of the casing and liner not having a proper seat was due to the negligence of the defendants and to the shooting of the well, and that the work of appellee was appropriated; that he had completed his work in substantial compliance with his contract. It is not necessary or proper for us to determine which version of this evidence is the correct one. These were questions of fact to be determined by the jury, and unless we can say that the verdict of the jury is manifestly against the weight of the evidence then we have no right to disturb their verdict upon that ground, and we cannot say that the verdict rendered is in violation of this rule, and finding no substantial error in the record the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Jeremiah Odum, Administrator, Appellee, v. Corn Products Refining Company, Appellant.
    1. Practice—exclusion of widow and children in action for death. The widow and children of deceased cannot he excluded from the court room in an action for death, though their presence will enlist the sympathy of the jury, since they are parties interested in the result of the suit.
    2. Negligence—res ipsa loquitur. In an action for death from injuries in an explosion, when it is alleged that because of defendant’s negligence a fire occurred in his feed house which reached an elevator building, causing the explosion, plaintiff, to invoke the doctrine of res ipsa loquitur, must show not only that the elevator building was under defendant’s control but also that the agency causing the explosion arose or came out of a building also under defendant’s control.
    3. Negligence—res ipsa loquitur. To invoke the doctrine of res ipsa loquitur, it must appear that the agency causing the accident is solely under the defendant’s management.
    4. Negligence—sufficiency of evidence. In an action for death caused by an explosion in an elevator building, the negligence alleged was in permitting a fire to occur in a feed house, which reached the elevator building through a cyclone pipe connecting them. If the fire occurred in the feed house, it was apparently caused by some hard substance, passing through the mill, but one of plaintiff’s witnesses testified that nothing had gone through, and the evidence of another witness indicated that the fire did not originate in the feed house. The evidence disclosed that the feed house and machinery were in good condition, and no negligence was shown in its construction or operation. The small verdict indicated that it was the result either of a compromise or of doubt in the minds of the jury. Held, that a verdict for plaintiff would he set aside on appeal.
    Action in case for personal injuries. Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1912.
    Dan McGlynn, for appellant.
    Thomas Stallings, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

The trial of this case resulted in a verdict and judgment for the plaintiff in the amount of one thousand dollars, to reverse which judgment the appellant prosecutes this appeal.

On August 7, 1910, and prior thereto the appellant had been engaged in the business of extracting oil from the kernels of corn from which syrups are manufactured and in preparing the grain of corn, after the kernel had been extracted, for feed. Several buildings were used by the appellant in this work but more particularly a building known as the feed house, upon the first floor of which was located a mill, and the other building was known as the feed elevator and consisted of a six story brick building and was distant about one hundred fifty feet from the feed house. The two buildings are connected by an eighteen inch galvanized iron pipe extending from the outer wall of the lower floor of the feed building along and near the mill located thereon, thence to the upper floor of the elevator building at an angle of about forty-five degrees and there opens in to a bin. Near the mill are iron cylinders called dryers which are set at an angle and permit the feed, when in a proper state, to fall out, from whence it is" lifted by a perpendicular pipe and deposited in a cyclone on top of the feed house and immediately above the mill called the foose mill, where it falls by gravity into the mill; at intervals catcher boxes are placed for the purpose of allowing nails and pieces of metal to fall into the same, by gravity, as the feed is taken along through the pipe by the suction of a fan. The foose mill has two heavy iron disks, or grinders, about thirty-six inches in diameter fastened to shafting so that they revolve in opposite directions, the feed going in at the center and being thrown out at the bottom, and are enclosed in a cast iron frame to which is attached a lever used to separate the disks; after the feed has been taken by the fan through the pipe containing the catcher box and up a perpendicular pipe and across to the cyclone, which is some distance immediately above the foose mill, it is allowed to fall by gravity through an opening in the bottom of the cyclone on to the top of a German magnet designed to prevent particles of iron or steel from going into the grinders of the mill, and the feed when ground falls by gravity into an eighteen inch galvanized iron pipe heretofore described and called the intake pipe, this pipe is screened on the outside and has an opening on the inside of the wall which is also screened, and in fair weather the outside is used for the intake of air and in bad weather the inside is used. The feed is taken through this blow pipe by the use of the fan to the top of the elevator building where it is deposited in a hopper and there sacked for use.

The deceased, Samuel Batson, as it appears from the evidence had nothing to do with the mill or its operation but he was the foreman and in charge of the elevator and had five or six men under his direction and supervision, caring for the elevator and sacldng the feed. The evidence discloses that there was more or less dust connected with the manufacture of this feed stuff, and of the sacking thereof, and that particles of dust collected in the upper stories of the elevator and from this collection of dust it appears that the dust explosion occurred about four o’clock in the afternoon of August 7th, tearing away the upper story and cyclone of the elevator building and causing the brick to fall upon the appellee’s intestate and injured him, from which injury he afterwards died.

The declaration in this ease consisted of four counts but at the close of plaintiff’s testimony the first, second and third counts were withdrawn and the case went to the jury upon the fourth count.

The fourth count of the declaration, after setting out the business in which appellant was engaged, and describing the elevator building and feed house, the machinery and the purposes thereof, also that the deceased Samuel Batson was foreman in charge of the elevator building, and that the feed house, food products, machinery and appliances connected therewith were in the exclusive control and management of the defendant and its servants engaged in said feed house, with which the deceased had no connection; it then avers that the defendant so negligently and carelessly operated, handled, managed and controlled said feed house, mill, machinery, connections and appurtenances, that by and through such negligence and carelessness a fire occurred in said feed house and reached the upper floor of the elevator building through the cyclone pipe which connected said elevator building in said feed house as aforesaid, by means whereof an explosion occurred in said elevator building; by means whereof the deceased, who was then and there in the employ of the defendant, in and about the elevator building as aforesaid, while in the exercise of due care and without notice or means of knowledge of danger to him and while so situated in said feed house, food stuff, machinery and appliances, was severely burned, bruised, wounded and injured from the flames of said explosion and the bricks that were hurled from the top of the elevator building by said explosion, from which injuries he afterwards died.

The first complaint made by counsel for appellant is, that the court erred in refusing to grant appellant’s motion to exclude the widow and two minor children of the deceased from the court room during the trial of the case, and later a motion to exclude the children. It is argued that the presence of the widow and children would have a tendency to create sympathy upon the part of the jury that would induce the jury to find a verdict for appellee from sympathy rather than from the evidence produced in the case. It may be true that the presence of the widow and these children would tend to énlist the sympathy of the jury in their behalf, but the widow and children are interested parties in the result of this suit; whatever judgment is obtained belongs to them and we know of no law that prevents interested persons from being present at the hearing of their case, even though their unfortunate condition was such as to enlist the sympathy of the jury, and we have not been referred by counsel to any case that, as we think, announces a different principle. The case of Jones & Adams Co. v. George, 227 Ill. 70, was an action brought by the plaintiff himself for injuries that he had received, and he was there allowed to prove that he was a married man and had three children, which could have nothing to do with the question as the court said the damages allowed were only compensatory for the injury received. And the other case referred to C. P. & St. L. R. R. Co. v. Woolridge, 174 Ill. 334, was where evidence had been admitted that one of the children of the deceased was a cripple, which was held to be error as the court said the damages recoverable could only be the loss to the estate. We think these authorities and others cited are not applicable to the facts in this case for the reasons above stated.

Again, it is contended by counsel for appellant that as the declaration charges the negligence in the following language, “And the plaintiff avers that the defendant so negligently and carelessly operated, handled, managed and controlled said feed house, the mill, machinery, connections and appurtenances that by and through such negligence and carelessness a fire occurred in said feed house and reached the upper floor of the elevator building through the cyclone pipe which connected said elevator building in said feed house as aforesaid, whereby an explosion occurred in said elevator building, etc.;” that the negligence as alleged is particularized and must be proven as stated, and that because of the particular negligence having been alleged, that the doctrine of res ipsa loquitur has no application and cannot be invoked by the appellee. In view of the decision in the case of Chicago City Railway Co. v. Barker, 209 Ill. 321, we are inclined to doubt if this position is well taken, as the acts of negligence alleged are in general terms and the particularizing seems to arise as to the effects of the negligence rather than from the acts themselves; but viewing the case as we do, we do not deem it necessary to determine this question. Under the evidence in this case there is but one theory upon which appellee can recover, and that is to show that the fire originated in the mill house, and we do not understand that counsel for appellee makes any claim for the right of recovery except under the theory that the fire originated in" the mill house. In invoking the doctrine of res ipsa loquitur it must appear that the agency causing the accident is solely under the management of the defendant for if it is partly under the management of the plaintiff then the doctrine could not be invoked. It is said in the case of Hart v. Washington Park Club, 157 Ill. 15: ‘ ‘ Perhaps it may be more accurate to say, that the presumption of negligence arises, not exclusively from the fact that the accident happened, but that it happened under given conditions and in connection with certain circumstances.” And in the same case it is said, “But when the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those, who have the management, use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care * * *” On page 16 of the same case the Supreme Court further says, “In Addison on Torts, (Vol. 1, Sec. 33) the rule is thus stated: “Where the accident is one which would not, in all probability, happen, if the person causing it was using due care, and the actual machine causing the accident is solely under the management of the defendant, the mere occurrence of the accident is sufficient prima facie proof of negligence to impose upon the defendant the onus of rebutting it.” Upon the basis of these authorities the case of The William Branfoot, in 48 Fed. Rep. 914, holds, that, “when an unusual and unexpected accident happens, and the thing causing the accident is in one’s exclusive management, possession or control, the accident speaks for its self, is itself a witness, res ipsa loquitur, and, in a suit by any one having an action therefor, the fact of the accident puts on the defendant the duty of showing that it was not occasioned by negligence on his part.” If this doctrine be true then the mere fact that the explosion took place in the elevator building, which was under the control' and management of the deceased, Samuel Batson, would not of itself be sufficient to permit the appellee to invoke the doctrine of res ipsa loquitur, but he must go further and show that the agency causing the explosion arose, or came out of the mill building which was under the control of the defendant; and we think this fact would have to be established by the appellee before the doctrine contended for could be invoked, and before the appellant would be required to rebut the presumption of negligence. The question then arises, has it been proven that the fire or spark causing this explosion originated in the mill building? It is contended by counsel for appellee that this was a question of fact to be determined by the jury; which as a naked proposition is true but the finding of a fact by a jury must be based upon competent evidence in the record.

Counsel for appellant ■ and for appellee, each have theories, and each have indulged in arguments that are more or less plausible as to their respective theories of this explosion and origin of this fire, but, after all, they are only theories and may or may not present a correct view with reference thereto. It seems to us very clear that if this fire did originate in the mill house it must have been caused by a piece of steel or iron passing through the mill and by reason of the friction caused a spark to be carried through this large galvanized pipe .to the elevator, and to the point where the explosion occurred, and for this to have occurred a piece of steel or iron or something of that character must have passed through the mill. The witness L. Graham, introduced by appellee, testified that he was in the mill house and standing close by the mill at the time the explosion occurred and he says that he saw flame coming through the intake pipe immediately after hearing the noise of the explosion; but he states in positive and direct terms that no foreign substance of any kind had passed through the grinder of the mill, and that if it had passed through he could have heard it, and his conclusion as to the way the flame was passing was that it was going from and not towards the elevator; to this, however, we cannot attach very much importance as it is not probable he could tell with accuracy which way the flame was going, but he was plaintiff ’s witness and positive that nothing went through the grinder, and if this be true, the fire could not have originated in the mill. Another witness, who was the oiler at appellant’s mill, testified that he heard the report and saw smoke and that his attention was drawn to it by the report, and that after the time of hearing the report he had taken twelve or fifteen steps from the dryer-fan to the mill and it was then that he saw the flame and smoke coming from the pipe. If the testimony of these witnesses indicate anything it is that the fire did not originate in the mill, that it was first discovered in the mill shortly after the report of the explosion.

It is argued by counsel for appellant that the flame could not have passed through this eighteen inch pipe against the current of air produced by the fan. This theory may not appear so reasonable when we remember that this eighteen inch pipe connected with the air from out side of the building and that the moment the explosion occurred the elements would seek their vent in the weakest places, and we do not see why, with the force that appears to have accompanied this explosion, the flame might not have been driven against the current of air and to the outside; but this is not necessary to determine. The only question here is, is there any evidence from which a jury could reasonably say that the fire originated in the mill ? The evidence also discloses, so far as we are able to perceive, that the mill and machinery therein were in good condition; that the making of the products and the machinery used were of an approved plan. Nothing is developed by the evidence showing the defendant to be negligent, either in the construction or operation of the mill. The meager allowance made by this verdict indicates to our minds that the verdict was either the result of a compromise or arose from a conviction in the minds of the jurors that it was doubtful if the defendant was to blame; and while this unfortunate accident entails loss on the widow and children, we, are unable to say that this defendant is guilty of any negligence that brought about this loss, and we feel that the verdict of the- jury is not warranted by the evidence contained in this record, and the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Jasper Potter, Plaintiff in Error, v. The Commissioners of Highways of Eagle Creek Township, Defendant in Error.
    1. Roads and bridges—assessment of damages. An appeal from a verdict assessing the damages caused by the laying out of a highway across certain land is properly taken to the County Court.
    2. Roads and bridges'—assessment of damages. The highway commissioners’ certificate to a justice asking for a jury to assess damages for laying out a road, need not give the width of the road, but need only give a general description, and it is proper to show at the trial the width of the road, its distance and course across the land in question, and that the survey was made.
    3. Appeals and errors—presumption when no certificate showing that record contains all the evidence. On appeal where there is no certificate that the record contains the whole of the evidence, it is presumed that the evidence warranted the verdict and judgment.
    4. Roads and bridges—when presumed on appeal that acts by commissioners were regular. On appeal from a verdict assessing the damages caused by laying out a road, it must be presumed that the steps taken by the highway commissioners in laying out the road and assessing damages were regular where it does not appear from the certificate that all the steps taken and shown on the trial are incorporated in the record.
    5. Roads and bridges—when presumed on appeal that proceedings of commissioners were regular. Though the record of proceedings of highway commissioners in laying out a road, as presented by the bill of exceptions is incomplete in the absence of a certificate, that it contains all the evidence, it must be presumed, so far as necessary to sustain the verdict and judgment, that the proceedings were regular.
    6. Appeals and errors—amended bill of exceptions. "Where the plaintiff in error with leave and without objection files an amended bill of exceptions after the defendant in error has filed his brief by which it appears that a motion for new trial was made because of refusal to grant a continuance, the motion and the court’s action properly appear in the record.
    7. Practice—when refusal of continuance reversible error. Refusal of a continuance is reversible error where in proceedings to assess damages for laying out a road, an affidavit was presented, stating that three witnesses if present would testify that the land was worth $100 per acre, that subpoenas had been issued, that one witness at least was sick and unable to be present, and that the facts could not be proved by other witnesses, and where the witnesses of the opposite party valued the land at from $27 to $35 per acre.

      Error to the County Court of Gallatin county; the Hon. H. P. Bozarth, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1912.
    McKernon & Davis and Bartley & Bartley, for plaintiff in error.
    Roedel & Roedel, for defendant in error.
   Mr. Justice McBride

delivered the opinion of the court.

In this case a petition to lay out a hew road, extending across the lands of the plaintiff in error, was presented to the defendant in error, and after granting the prayer of the petition, and failing to agree with the plaintiff in error as to the amount of his damages, filed a certificate with the justice of the peace and asked that a jury be impaneled to assess the damages of the plaintiff in error; the damages were assessed by the jury, from which assessment the plaintiff in error secured an appeal to the County Court of Gallatin county. The case was tried de novo in the County Court and verdict and judgment obtained for plaintiff in error in the amount of $33.00; to reverse which judgment the plaintiff in error prosecutes this writ.

Prior to the commencement of the trial the plaintiff in error made a motion and presented an affidavit for a continuance, which was refused. He then withdrew from the court room and the trial proceeded in his absence. The defendant in error offered some testimony as to the value of the lands taken for this highway, and plaintiff in error then entered his motion for a new trial, and failing in this took an exception to the order of the court.

It is claimed by the plaintiff in error that the County Court of Gallatin county was without jurisdiction to hear this appeal and urged that the appeal should have been taken to three supervisors. It was the plaintiff in error who appealed this proceeding to the County Court, and if he was of the same opinion then, as now, and sincere in that contention, it seems to us that the proper thing for him to have done was to have dismissed his appeal. We do not believe that this point is well taken. This is not an appeal from the order of the commissioners granting the prayer of the petition but the appeal, as we gather it from the record, is simply from the amount of damages assessed by the jury. We are of the opinion that it is conclusively settled by the decisions of our Supreme Court, that the right of appeal from the verdict of the jury in the assessment of damages occasioned by reason of the laying out of the highway across the lands of the plaintiff in error is properly taken to the County Court. The People v. Commissioners of Highways, 188 Ill. 150.

It is next contended that the court did not have jurisdiction in this particular case because the certificate that was filed before the justice of the peace did not give the width of the road and that the commissioners did not have the road surveyed. We do not regard it as necessary that a certificate is required to give the width of the road. All that was required in the certificate was to give a general description of the road and it was proper to show upon the trial, by competent evidence, that the survey was made and the width of the proposed road together with the distance and course the road would take across the land of the plaintiff in error. In speaking of a certificate of the commissioners’ to the justice of the peace, in a case of this character our Supreme Court in the case of McManus v. McDonough, 107 Ill.101, says, “It does not require the certificate to give the survey or the course and distance, but simply a description of the road, and here is a description sufficient to enable that part of the road to be found. It would, under this description, have been proper on the trial to introduce the survey of that part of the road, or some more minute description, to enable the jury to ascertain the accurate amount of damages. The statute, we think, does not require the certificate to contain a minute description, by courses and distances, of the whole road, or even the portion for which damages are claimed, but a general description of the portion for which damages are claimed will suffice.” It will be observed by reference to this case, that the certificate there in question did not contain the width of the road.

There is no certificate in this record that it contains all of the evidence heard upon the trial of this cause. Counsel for plaintiff in error states in his brief that there is a certificate to that effect but this statement is challenged by counsel for defendant in error, and upon examination of the record and abstract we are unable to find any such certificate attached thereto. Under the repeated decisions of the Supreme and Appellate Courts of this state where there is no certificate that the record contains the whole of the evidence, the uniform holding is that it must be presumed that the evidence heard upon the trial of the cause was sufficient to warrant the verdict and judgment rendered.

Other irregularities in the proceedings by the commissioners of highways to secure a jury, and in other respects are also complained of as being insufficient to warrant the County Court in taking cognizance. of this case, but as it does not appear from the certificate that all of the steps taken and shown upon the trial are incorporated in the record, it must be presumed that all of the steps taken by the commissioners of highways in the laying out of the road, as well as in the assessment of the damages, at least so far as this suit is concerned, were regular. It is said in the case of Shields v. Ross, 158 Ill. 227, “The rule in this state has always been that in a matter of laying out, opening, altering, widening and vacating roads the presumptions are all in favor of the regularity and validity of the various steps and proceedings that are antecedent and preliminary to the entry of the order laying out, opening, altering, widening or vacating such roads, but subject to rebuttal by any person questioning the validity of such proceedings. And these prior proceedings may be either attacked or sustained by parol evidence. ’ ’ The record of the proceedings as presented by this bill of exceptions seems to be rather incomplete but owing to the want of a proper certificate showing that it contains the whole of the evidence, we must indulge the presumption that the proceedings were regular so far as is necessary to sustain the verdict and judgment of the court. While other irregularities are complained of, we think in view of what has been above said that it is not necessary to further comment upon them and that they are such matters as will be corrected upon another trial of this case.

The most serious error complained of so far as presented by this record, is the refusal of the court to grant a continuance on motion of the plaintiff in error. A motion was made to continue the case and it appears from the affidavit presented in support thereof that Fred Zinn, Silas Potter and Harrison Baker were important witnesses in behalf of plaintiff in error. That they resided in the County of G-allatin and that subpoenas had been issued for them and that one of them at least was sick and unable to be present and testify in court; that he would be able to prove by these witnesses, if present, that the lands in question were of the value of one hundred dollars per acre, and that he knew of no other witness or witnesses by whom he could prove these facts. It also appeared from the affidavit that this was a material question upon the trial of the case. The evidence of the witnesses introduced in behalf of the defendant in error placed the value of this land at from twenty-seven to thirty-five dollars per acre, and it would seem to us, from the affidavit presented, that the witnesses were material for a proper presentation of the rights of the plaintiff in error, and that the plaintiff should have had an opportunity to obtain his evidence, unless the defendant would admit the statement in evidence, as provided by statute. Indeed, the sufficiency of the affidavit is not questioned by counsel for defendant in error but he seeks to avoid this error by saying that it cannot be taken advantage of because it was not assigned as error in the motion for a new trial, “so far as the record discloses,” and that “Before it can be said the court erred in its ruling on the motion it must have been given an opportunity to correct itself.”

Since counsel for defendant in error filed his brief herein, the plaintiff in error has taken leave to file an amended bill of exceptions, which he filed on May 14, 1912, to which no objections have been made, and it appears from this corrected transcript that the plaintiff in error did make a motion for a new trial and that one of the errors assigned therein was that the court “Befused to grant a continuance in this cause upon affidavit made by the defendant, etc.,” and as we view it, the motion for a new trial and the action of the court thereon now properly appear in the record. We are of the opinion that the court erred in refusing to grant the plaintiff in error a continuance and because of this error the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


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    John M. Lansden, Township Treasurer, Appellee, v. Alexander County National Bank, Appellant.
    1. Statutory paw—implied repeal not favored. Repeal of statutes by implication is not favored, unless they are so repugnant that they cannot operate together.
    2. Schools—implied repeal of general warrant act of 1901. The school law of 1909, which gives school boards power to issue non-interest bearing warrants when there is no money in the treasury, does not expressly or impliedly repeal the General Warrant Act of 1901, providing that, where there is no money in the treasury, a fund to meet expenses may be raised by all municipal corporations, including school boards, by issuing interest-bearing warrants against taxes already levied, and under such laws school boards may still issue interest-bearing anticipation warrants.
    Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1912.
    John M. Lansden, Pro se, for appellant.
    David S. Landsen, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

Judgment was rendered for the plaintiff under an agreed state of facts for the amount of $731.51, and this appeal is prosecuted by the defendant.

• This case was submitted under an agreed state of facts as provided by Section 103 of the Practice Act, including a statement of law, as claimed by the defendant as to whether under the Revised School Law of June 12, 1909, school directors or school boards can issue interest bearing anticipation warrants when there is no money on hand to meet and defray their ordinary and necessary expenses. The facts submitted, in substance, show that the appellee is the treasurer of Township 17, Range 1 West in Alexander county. That it has been customary for the appellant to cash school orders drawn by the board of education, and that in 1910 the board of education had no means to meet and defray the ordinary and necessary expenses of the school district, and drew anticipation warrants bearing five per cent, interest and cashed them at par at said bank and provided a fund to meet its expenses, and that interest to the amount of $731.51 had been paid upon these several warrants that had been issued. The appellee now claims that under the revised school law as enacted in the year 1909, that no authority was given to issue interest bearing warrants, and he thereupon demanded that the bank refund the $731.51 paid to it, as interest upon these warrants, and the bank having refused so to do, the case was submitted to the court for its determination, which resulted in a judgment for the plaintiff for the full amount of the interest claimed. On May 31, 1879, an Act of the Legislature was passed under the general title of Warrants (Chap. 146a of Hurd’s Revised Statute), sec. 2 thereof provided, “That whenever there is no money in the treasury of any county, township, city, school district or other municipal corporation to meet and defray the ordinary and necessary expenses thereof, it shall be lawful for the proper authorities of any county, township, city, school district or other municipal corporation to provide that warrants may be drawn and issued against and in anticipation of the collection of any taxes already levied by said authorities for the payment of the ordinary and necessary expenses of any such municipal corporation to the extent of seventy-five per centum of the total amount of any such tax levied; provided, that warrants drawn and issued under the provisions of this section shall show upon their face that they are payable solely from said taxes when collected, and not otherwise, and shall be received by any collector of taxes in payment of the taxes against which they are issued, and which taxes, against which said warrants are drawn shall be set apart and held for their payment.”

In the year 1889, “An Act to establish and maintain a system of free schools” was passed and approved on May 21st, and by Section 149 of this Act a section was inserted giving the hoard of directors of schools the same power to issue anticipating warrants that was provided in the Act of 1879, with reference to warrants in general. On May 11, 1901, Section 2 of Chapter 146a, entitled Warrants, was amended to read as follows, “That whenever there is not sufficient money in the treasury of any county, city, town, village, school district or other municipal corporation, to meet and defray the ordinary and necessary expenses thereof, it shall be lawful for the proper authorities thereof to provide a fund to meet said expenses by issuing and disposing of warrants drawn against and in anticipation of any taxes already levied by said authorities for the payment of the ordinary and necessary expenses of said county, city, town, village, school district or other municipal corporation to the extent of seventy-five per centum of the total amount of any such taxes levied.” Section 3 was also enacted, which provided, every warrant issued under this act shall, unless paid within thirty days after its issuance, bear interest, payable only out of the taxes against which it shall be drawn, at the rate of five per cent, per annum from the date of its issuance until paid, or until notice shall be given by publication in a newspaper or otherwise, that the money for its payment is available, and that it will be paid on presentation unless a lower rate of interest shall be specified therein, in which case the interest shall be computed and paid at such lower rate. In 1909 an Act was passed entitled, “An Act to establish and maintain a system of free schools;” approved and in force June 12, 1909'. Section 117 of this Act contains the same provision and almost in the same language, as Section 149 of the School Law in 1889.

The construction of the above statutes are involved in the determination of the question submitted.

It is claimed by counsel for appellee that as the school law of 1909, which contained the above statutory provision, was a revision of the law with reference to free schools, that Section 117 of that Act provided a complete and exclusive scheme for the issuance of anticipation warrants by school officers, as a substitute for the scheme provided in the General Warrant Act, so far as it applies to schools or school officers, and in the argument in support of this proposition reference is made to the case of the People v. Town of Thornton, 186 Ill. 162, in which the court says, “Where the legislature frames a new statute upon a certain subject matter, and the legislative intention appears from the latter statute to be to frame a new scheme in relation to said subject matter, and make a revision of the whole subject matter, there is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and that whatever is excluded is discarded. The revision of the whole subject matter by the new statute evinces an intention to substitute the provision of the new law for the old law upon the subject.” Several other authorities are referred to in support of this position. It would seem, upon first impression that this canon of construction would be conclusive upon the question here presented but upon reflection and examination of many authorities, there are other things .to be taken into consideration besides the one here suggested in the construction of this statute. It is true, this purports to be “An Act to establish and maintain a system of free schools” but we do not think that where other statutes that are general in their character embody a provision for the benefit of schools, that is not repugnant to the Act passed, that it necessarily follows that such general Act is thereby repealed. Again, this same provision has been a part of the school law since 1889, and from the time of the enacting of the general law, with reference to warrants, on May 11, 1901, up to the revision of the school law in 1909, effect has been given to both the statute in the school law and the general statute in the warrant Act. We do not believe that the mere revision, such as is claimed for the school law of 1909, in which the old section of the school law of 1889 was simply re-enacted, almost literally, that it ought to be given any greater effect than it possessed under the original Act of 1889. It is provided by Section 2 of Chapter 131 of the Revised Statute of Illinois that, “The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment;” we think this fact, together with the public inconvenience, absurdity, the beneficial effect and repugnancy of the statute, and the evil to be remedied, if any, ought to be considered in determining the application of this rule. The provision in the school law of 1909 and the warrant Act of 1901 are not repugnant or even inconsistent, and it is conceded by counsel for appellee that they are not repugnant. The school Act of 1909, simply gives to the school board the power to issue non-interest bearing warrants when there is no money in the treasury; as we take it, these may be issued to the individuals with whom the school board transacts business, or to purchasers of supplies, etc., if they are willing to receive them; but the general warrant act of 1901, by its terms, provides that a fund may be raised by all municipal corporations, including school boards, to be used in the defraying of its expenses, when there is no money in the treasury, and it is very clear that the object of the legislature in passing this Act was to provide a means by which municipal corporations could transact business and pay the money for what was necessary to be purchased without being embarrassed in the issuing of non-interest bearing warrants. There is no express provision repealing the law of 1901. Repeals by implication are not favored when such laws are not repugnant; the law does not favor repeals by implication, and unless the earlier and later statutes are so repugnant that they cannot operate together, both should be treated as being in force. Galpin v. City of Chicago, 249 Ill. 554.

Even though two Acts are seemingly inconsistent, they should, if possible, be so construed that the later Act may not operate as a repeal of the earlier by implication. People v. Raymond, 186 Ill. 407.

It seems to us that to adopt the construction of this statute, as contended for by appellee, would result in great inconvenience to all school boards, and work an injustice to all persons who might have occasion to transact business with such school boards when they had no money in the treasury, by being compelled to take non-interest bearing warrants in payment of just debts of the school board and then wait until the taxes were collected, without interest for their money; this, we think, is absurd' and such a construction should be obviated, if it can be done without violence to the letter and spirit of law.

It is said by our Supreme Court, in the case of People v. Harrison, 191 Ill. 267, “When the literal enforcement of a statute would result in great inconvenience and cause great injustice, and lead to consequences which are absurd and which the legislature could not have contemplated, the courts are bound to presume that such consequences were not intended, and adopt a construction which will promote the ends of justice and avoid the absurdity. * * * In determining the meaning of a statute the court will have regard to existing circumstances or contemporaneous conditions, and also to the objects sought to be obtained by the statute and the necessity or want of necessity for its adoption.” It certainly was not in the mind of the legislature to inconvenience and embarrass school boards by taking away from them a power that existed, giving them the right to provide a means of transacting the necessary business of the school district, upon a cash basis without any necessity for doing so. It seems to us that it has been the policy of the state to give to school boards equal powers with other municipalities, to conduct the business of maintaining free schools, and this is manifested by' adding schools and counties to the General Warrant Act of 1895, which only gave cities, villages, and towns the right to borrow money and pay interest thereon, and this having been so long the recognized policy of the law of this state, we cannot see why a construction of a statute should be adopted that would, by implication, repeal a law that was in perfect harmony with such public policy. It was said in the case of Wheeler v. Wheeler, 134 Ill. 522, “As we have seen, where two constructions can be given with equal facility, that must be adopted which comports with the public policy of the state.”

Again, in the case of Loverin v. McLaughlin, 161 Ill. 429, the court says, “Statutes should be so construed as to give them a reasonable meaning, and should not be so interpreted as to lead to absurd consequences. Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship or injustice; to favor public convenience, and to oppose all prejudice to public interests.” It seems to us that the legislature in reenacting Section 117, in the laws of 1909, had in mind that this law had been in effect so long, as a part of the school law, and had been acted upon in connection with the General Warrant Act of 1901 for so many years that such a policy of giving a school board the benefits of both Acts would be continued as heretofore. It certainly does not appear that the legislature was, by the enacting of this section, undertaking in any manner to remedy any evil or to make any change in the legislation, and we are of the opinion that as these laws are not repugnant that the statute of 1909 should not, by implication, be construed as repealing the Act of 1901. To permit both sections to remain in force will result in a public benefit and convenience to the public, and we can see no reason why a school board should not as well pay interest upon money that it may become necessary to borrow, as any other municipality, or why it should be subjected to any greater embarrassment in carrying on the business of conducting schools than any other municipality in the transacting of its business; and it looks as if this construction is fair and just to all, and it is the order of this court that the judgment of the lower court be reversed and cause remanded, with directions to render judgment for the defendant.

Reversed cmd remanded.


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    Henry Mengelkamp and Tillie Mengelkamp, Appellees, v. Consolidated Coal Company, Appellant.
    1. Mines and miners—when act applies. The Mines and Miners’ Act applies to all dangerous conditions in a mine whether they are incident to mining or not.
    2. Mines and miners—constitutionality of act. The Mines and Miners’ Act is not unconstitutional because it applies to conditions common to other occupations.
    3. Mines and miners—mere negligence. Proof of mere negligence will not support a verdict under the mining act, but there must be a wilful failure by the defendant to perform some act required by the statute.
    4. Mines and miners—when declaration sufficient after verdict. A declaration alleging violation of the Mining Act is sufficient after verdict, where each of its counts states that the company, or mine manager, or examiner wilfully failed to perform the particular duty required by the statute and that the dangerous conditions existed for several days.
    5. Mines and miners—pleading. A declaration which avers failure by a mine manager to perform his duty to see that a certain place was marked or danger signals placed there, after verdict implies a failure to perform the duty as alleged and is not objectionable as to imposing on such manager a personal duty to mark a dangerous place.
    6. Appeals and errors—exclusion■ of evidence harmless where subsequently admitted. Refusal to permit a mine examiner on cross-examination to state that his report was a correct report of conditions, even if error, is harmless were such examiner later stated that after his examination he reported conditions safe.
    7. Evidence—when exclusion of expert not error. It is not error to exclude expert evidence that a track in a mine was good and suitable for mine operation, where alleged defects therein caused the injury complained of, since the question is whether a dangerous condition existed.
    8. Instructions—when withdrawal not error. No serious error is committed where an improper instruction was read to the jury, but subsequently withdrawn.
    9. Mines and miners—instructions. An instruction is not erroneous which refers to the declaration for the injury and for the alleged dangerous condition in a mine, when there is no complaint as to the sufficiency of such averments.
    10. Mines and miners—instructions. An instruction is correctly refused which is argumentative and does not state a correct view of the mining law, and would take from the jury the determination of whether a dangerous condition existed.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    Rehearing denied November 9, 1912.
    .Wise, Keefe & Wheeler, for appellant; K. B. Hendricks and Mastín & Sherlock, of counsel.
    D. J. Sullivan, for appellees.
   Mr. Justice McBride

delivered the opinion of the court.

By this appeal the appellant seeks to reverse a judgment recovered by the appellees against it in the City Court of East St. Louis, for the amount of five thousand dollars.

On April 7,1911, Casper Mengelkamp was employed in appellant’s mine as assistant upon the electric motor and his business was to attend to the throwing of switches, coupling and uncoupling of cars and perform such other duties as might be required of him by the operator of the motor. While engaged at this work he fell from the motor and was badly injured, which resulted shortly thereafter in his death. He left surviving him parents who brought this suit to recover for his death under the mining statute of this state.

It appears from the evidence that while the deceased was engaged at his work he rode upon a bench upon the front end of the electric motor, and that as occasion would require he would couple to or uncouple cars from the motor, turn the switches and perform such other work as he was directed to do by the operator' of the motor. On the day in question some cars had become uncoupled from the trip and upon discovering that these cars were lost the motorman, in connection, with the deceased, returned on the trip to recover the lost cars. The motorman was on the rear of the electric motor and the deceased on the front end thereof, and as they approached the place near where they expected to find the lost cars they passed under a low place in the roof of the entry which was caused by a roll in the roof, and shortly after having passed by this roll in the roof the deceased reached back on the top of the motor for a snatch hook and at that moment fell and was crushed by the motor. The motor, at the time, was running very slowly, about as fast as a man could walk, as expressed by the motorman. The place where the deceased fell was about eighty or eighty-five feet from the roll of the roof and in towards the workings of the mine. The evidence as to the condition of the road and roadbed, at the place where deceased fell, is very conflicting. The testimony of appellees’ witnesses shows that the ties underneath the track were rotten in many places, and the spikes loose and that the condition of the track would cause the motor to swing and bounce as it passed over; that the roll in the roof would drag coal from off of the cars and had caused it to be scattered all along the track and to some extent obstructed the passage of the motor; that the track and surroundings had been in this condition for several days prior to the time of the injury.

It is alleged in the declaration, and claimed by counsel for appellees, that this constituted a dangerous condition in appellant’s mine, and that such dangerous condition was knowingly permitted by the appellant to exist. It is denied by the witnesses for appellant that the track and surroundings were in the condition testified to by appellees’ witnesses. The witnesses for appellant say, that a short time prior to the injury that the track had been repaired for a distance of eighty-five feet from the roll, or low place in the entry, and that it was apparently level and smooth and in every way in good condition. It is admitted by the witnesses for appellees that the track had been repaired, shortly before, for a distance front the roll but it was claimed by them that the repairing had not extended as far in towards the mine as the place at which the deceased was injured.

There are four counts in the declaration. The first count, after stating the duties of the deceased, alleged that “on the day aforesaid, and for a long time prior thereto there existed in the entry through which testate’s duties required him to pass a dangerous condition due to the fact that the track on which said motor ran was uneven, the ties, upon which the same rested, defective and rotten and the ground under said ties soft and spongy, and the roof of the entry, at and near the point where the track was in such defective condition, so low that it would rake the coal off the loaded boxes being hauled by the motor; that the coal so thrown from the boxes was liable to throw the motor and cars from the track, and said condition of the track, roof and coal had existed in such entry for many weeks prior to the death of plaintiffs’ intestate, and was known to the defendant, or could have been known to it by the exercise of reasonable care.” It then alleges that the deceased was in the line of his duty and was run over by the motor and injured, from which injuries he died. And then avers as follows, “Plaintiffs aver that the death of their intestate resulted from a wilful failure on the part of the defendant to prevent their intestate from entering said mine to work therein at his usual duties until the said entry had been made safe.”

The second count sets forth the conditions of the track and the injury to the deceased in substantially the same manner as the first, and then avers, ‘‘ That a reasonable examination upon the part of the defendant’s mine examiner would have disclosed the condition aforesaid, but that the defendant’s mine examiner, with knowledge of said conditions, wilfully failed to place a conspicuous mark where said dangerous place existed as notice to men to keep out; and wilfully failed to report the said conditions to the mine manager. That by reason of such wilful failure the death of plaintiffs’ intestate resulted as aforesaid..”

The third count, after setting out the conditions of the track and the injury of the deceased in substantially the same manner as the first count, then avers, “He was thrown from the motor in front of the same by reason of the defective condition of the track and the roof, and because of the wilful failure of the defendant as hereinafter stated. That the dangerous conditions were known to the defendant’s mine examiner and would be discovered by him on any examination and inspection made by him, but the defendant’s mine examiner wilfully failed to enter upon his daily record the said dangerous conditions aforesaid, in the book kept for that purpose, and that by reason of his wilful failure to make such entry in said book the death of plaintiff’s intestate resulted as aforesaid.”

The fourth count sets out the conditions of the track and mine and the injury to the deceased, substantially in the same manner as the first count, and then avers, “That the deceased was thrown from the motor, in front of the same, by reason of the defective condition of the track and roof aforesaid, and because of the wilful failure of the defendant hereinafter stated, And plaintiffs aver that it was the duty of the defendant’s mine' manager to see that all dangerous places above and below are properly marked and that danger signals are displayed wherever they are required; and that it was the duty of the defendant’s mine manager to properly mark the dangerous places and conditions aforesaid, and to have there displayed a danger signal or signals; but plaintiffs aver that defendant’s mine manager wilfully failed to mark said dangerous place or to display a signal at such place, and that by reason of his wilful failure to mark such place and display such signal the death of the plaintiff’s intestate resulted as aforesaid.”

The first contention of counsel for appellant is, that the mining act is not applicable to this case. He then takes up the low roll and the coal along the track, and the track separately, and argues that because these are matters incident to mining that they can not be considered as dangerous conditions, and that because some of these incidents are common to other occupations that they are unconstitutional. We regard the argument of counsel upon this question as fallacious and not supported by authority or logic. It is very apparent from this record that the dangerous condition found by the jury to have existed in this mine was that the track was uneven, ties rotten, spikes loose and the track in general in that condition that caused the motor when passing over it to swing and sag to one side, and jump when it hit.the joints, and shake, as expressed by some of the witnesses, by which deceased was thrown from the car. It is sufficient answer to counsel’s contention to quote the language of the Supreme Court in the case of Dunham v. Black Diamond Coal Co., 239 Ill. 459. “We cannot accede to this contention, but think the statute broad enough to protect the appellee from all dangerous conditions found in the mine. The statute provides that no one shall be allowed to enter the mine to work, except under the direction of the mine manager, until all conditions have been made safe, and that when any dangerous condition is discovered to exist in the mine, the mine examiner shall place a notice to all men to keep out of the mine. Clearly this language of the statute applies to a dangerous condition in the mine such as in the track over which the cars are drawn or in the road-bed or the sides of the entries by which the mine is traversed, as well as dangerous conditions caused by the falling of rock or other debris, and clearly includes a live wire so placed in the mine that a driver or his mule is exposed to contact therewith while in the mine, and from which an injury similar to the injury received by appellee might result.”

We are of the opinion that the conditions here described in plaintiffs’ declaration are within the terms of the mining act. The Constitution expressly authorizes special legislation as to mining and makes it the duty of the General Assembly to provide such laws as may be necessary for the protection of miners, and to provide for such appliances as may secure safety in coal mines, and we can see no reason why the courts, under this clause of the constitution, should look to other occupations and determine whether such law did or did not affect such occupations, or whether it was or was not a danger that was common to other occupations ; the very purpose of this constitutional amendment was to place the mining laws in a class to themselves, and our courts have further said that these laws should be liberally construed for the protection of the miners. Our Supreme Court has said that this section recognizes the dangerous character of the occupation of miners and requires legislation specially for their protection. The mining act was passed in obedience to this mandate and is to be liberally construed. Pate v. Blair-Big Muddy Coal Co., 252 Ill. 198; Cook v. Big Muddy Mining Co., 249 Ill. 41.

The next contention of appellant is, that the declaration states no cause of action, and after repeating the reason above noticed, as to the inapplicability of the laws, that none of these matters are subject to the mining act, adds further, that the allegations in each of the counts charge negligence and not wilfulness and that proof of mere negligence will not support a verdict under the mining act. True, the declaration avers the facts therein set forth to be negligent acts, and it is also true, as claimed by counsel that proof of mere negligence will not support a verdict under the mining act but it must appear from the evidence that there was a wilful failure upon the part of the defendant to perform or omit to perform an act required by the statute to entitle him to a judgment. It is also true that the allegation, “and was known to the defendant or could have been known to it by the exercise of reasonable care” appears substantially in each count of the declaration, and it is claimed that because of this averment that the count charges mere negligence and not wilfulness. It will be observed that each count of the declaration sets out the employment of the deceased, his work, the defective condition of the track, roof and sides of the entry, and that such condition had existed for many weeks prior to the death of plaintiffs’ intestate, avers that it was a dangerous condition, and then avers in the first count that the death of the intestate resulted from the wilful failure on the part of the defendant to prevent such intestate from entering said mine to work therein at his usual duties until the said entry had been made safe.

The second count avers that the defendant’s mine examiner with knowledge of such dangerous condition wilfully failed to place a conspicuous mark where said dangerous condition existed, and wilfully failed to report the said condition to the mine manager, and that by reason of such wilful failure the death of plaintiffs’ intestate resulted.

The third count charges that the mine examiner wilfully failed to enter the dangerous condition upon his record.

The fourth count charges that it was the duty of the mine manager to see that all dangerous places, etc., were properly marked and danger signals displayed; and avers that the mine manager wilfully failed to mark such dangerous place or to display danger signals thereat.

We are of opinion that while these counts contain some immaterial matter, that there is enough in them, especially after verdict and judgment, to sustain a judgment for wilful failure. It is stated in each of the counts that the defendant, the mine manager or mine examiner, respectively, wilfully failed to perform the particular duty required by statute, and that the dangerous conditions set forth had existed for many days; this was a sufficient allegation to imply knowledge upon the part of the parties, respectively, in each of said counts. The Supreme Court in the case of Peebles v. O’Gara Coal Co., 239 Ill. 374, says, “The count charges that plaintiff in error wilfully permitted defendant in error to enter said working place. The word ‘wilfully’ is synonymous with ‘knowingly. ’ The two words are equivalents. (Peterson v. Pusey, 237 Ill. 204.) The count charges that the dangerous condition existed prior to the day of the injury as well as on the day of the injury. Section 18 of the Mines and Miners Act upon which this count is based, requires a daily inspection of the mine by the mine examiner. Argumentatively, at least, the count therefore charged the plaintiff in error with notice of this dangerous condition. We think this count was a defective statement of a good cause of action, and is sufficient to sustain the verdict and judgment.” And in the same case the Supreme Court says: “Manifestly, the operators of mines are liable, under this provision of the statute, not only when the dangerous conditions have been discovered by them, but also if, by the exercise of the care required by the provisions of the act, they could have discovered the existence of such conditions.”

The declaration in this case alleges a dangerous condition; that it had existed several days prior thereto and a wilful failure upon the part of the defendant and its agents to perform their duties required by statute, and we think this disposes of the question arising in each of the counts of the declaration except the fourth. It is urged that the fourth count of the declaration imposes upon the mine manager a personal duty to mark the dangerous place or place a signal thereat; and the case of Legru v. Penwell Coal Mining Co., 149 Ill. App. 555, is referred to as exempting him personally from the performance of this duty. The averment in this count is, that it was the duty of the mine manager to see that this place was marked or danger signals placed thereat; and then avers his failure to mark it or place danger signals thereat. We are of the opinion that the breach here assigned, taken in connection with the duty alleged, would imply a failure upon the part of the mine manager to perform the duty as alleged, at least after verdict, and that it would not be susceptible of the construction sought to be given to it by counsel in his criticism. There was no contention in this case that the mine manager displayed a signal or claimed to have marked the place but the controversy was over the question as to whether this was or was not a dangerous condition, and we think that this count is fully sustained by the decision of the Supreme Court in the case of Dunham v. Black Diamond Coal Co., supra.

It seems to us from a consideration of this whole record and the instructions of the court, that the jury could not possibly have been of the impression that they were trying a mere question of negligence, as each count of the declaration concludes with an allegation of wilful failure resulting in the injury complained of.

Instructions Nos. 3, 4 and 5 of plaintiffs’ and especially in instructions Nos. 2 and 3 of the defendant, the jury are told that mere negligence is not sufficient to warrant a recovery but that before the plaintiff can recover, “the plaintiff must prove by the greater weight of the evidence that the defendant wilfully, that is, knowingly or intentionally violated the law in the respect charged in the declaration, and unless the plaintiffs do prove by the greater weight of the evidence that the defendant did wilfully violate the law then you must find the defendant not guilty.” Much reliance has been placed by counsel for appellant upon the decision of this court in the case of Jacobs v. Madison Coal Corporation, 165 Ill. App. 444, in which it is said, “The averment that appellant then and there could have known of such dangerous condition by complying with the statute, seeks to make appellant liable under the statute for negligence without regard as to whether it had knowledge of the condition or had knowledge of facts from which it ought to have known its dangerous condition, and eliminates the wilful failure required to create the statutory liability.” It does not appear from this opinion that the dangerous condition had existed for some time prior to the injury, or that the declaration alleged as a duty of the mine manager to see that the dangerous conditions were marked, as in the present case, and that the elements of negligence in the Jacobs case, with a right of recovery on account of such negligence were embodied in the instructions, and we do not think that the Jacobs case is decisive of the case now before the cokrt.

It is next complained that the court erred in not permitting appellant to show by cross-examination of the witness Helm, the Mine Examiner, that this report was a correct report of the conditions found in the mine. We do not believe that this was proper cross-examination, but if it were, the witness after-wards stated that as a result of his examination he reported it safe.

Again, it is claimed that the court erred in refusing to permit appellant to prove by his expert witnesses that the track in question was a good and suitable piece of track for mine operation. We do not see that this question was proper or material to the issue. The track may have been suitable for mining operation and yet to some extent dangerous for men engaged in the work. The question here was, did a dangerous condition exist; we cannot see that there was any prejudicial error in refusing to permit this question to be answered.

. Again, it is claimed that the court erred in giving appellees’ Instruction No. 3 based upon the first count of the declaration, because such count did not charge a wilful violation of the mining act. This criticism, as well as the criticism upon the fourth and fifth instructions was determined by the holding herein upon the question as to the validity of the several counts of the declaration.

The further criticism made upon these instructions is that they incorporate the declaration therein by referring to it and making it a part of the instruction. This criticism is not well taken, as an examination of the several instructions will disclose that they do not incorporate the failure of the defendant in the discharge of its duties. The most that can be said of them is that they refer to the declaration for the injury and for dangerous conditions alleged. There is no complaint as to the insufficiency of these averments and we do not think the criticisms well taken.

It is said that the court erred in reading plaintiffs’ sixth instruction to the jury and then withdrawing it but no authority is cited supporting such contention, and we cannot see what else the court could have done except to withdraw an improper instruction that had been read to the jury, and cannot believe it to be serious error.

Complaint is also made of refusal to give appellant’s first, second, third, fourth and fifth refused instructions. These have all been disposed of by this opinion in sustaining the validity of the several counts of the declaration, except the fifth refused instruction, and this instruction is vicious from the fact that it is argumentative and announces the- doctrine that if the track and road-bed were maintained in a practical and proper manner as was usual for such tracks and road-beds in the mines, then all such damages arising therefrom are dangers incident to the employment and are not dangers covered by the mining act. Also that the dangerous conditions referred to in the Mining Act are only such conditions as are dangerous when the Company has used such care as the law requires in the removal of such dangers. This instruction is argumentative, does not state a correct view of the mining law and would take from the jury the question of determining whether or not a dangerous condition existed, and directs that no liability will exist when the Company uses such care as the law requires in the removal of such dangeis. This is misleading, as the care required by the law is, that while such dangerous condition exists no one shall be permitted to enter the mine to work therein except for the purpose of repairing the dangerous condition. This instruction was properly refused.

The next complaint is that the verdict of the jury is manifestly against the weight of the evidence. It is true that there is a conflict in the testimony of the witnesses with regard to the condition of the track in question. Practically all of the witnesses for appellee testified that the ties were rotten, spikes loose, the track uneven and springy and causing the electric motor to swing and jump in passing over the track. The witnesses for appellant admit that the track had at one time been out of repair but that just prior to the injury complained of the track had been repaired, but this is met by the testimony of witnesses for appellee who state that while it is true the track had been in part repaired, it had not been repaired at the place where deceased was injured, and that the repairs had not reached within several feet of the place. This was a question of fact solely for the consideration of the jury, and unless we can say from an examination of this evidence that the verdict was manifestly against the weight of the evidence, then we have no right to disturb its verdict. We cannot say from a careful reading of all of the evidence in-this case that the jury was not warranted in finding a verdict for the appellees, and in our opinion the judgment should be and is affirmed.

Judgment affirmed.