Sheppard v. Marquette Third Vein Coal Mining Co. , 1911 Ill. App. LEXIS 344 ( 1911 )

Mr. Presiding Justice George "W. Thompson

delivered the opinion of the court.

Appellant contends that the bursting of the steam separator and pipe was caused by the deceased negligently turning steam into the dynamo engine without first draining the water out of the steam pipe and the Austin separator, that his death was caused by his own negligence, and that the. explosion of the steam separator and pipe was not caused proximately or otherwise by any of the violations of the statute charged in the declaration. The appellee contends (1) that appellant wilfully failed to have the boilers and connections examined and inspected by a competent boiler-maker or other competent person not an employe of appellant as required by law; (2) that appellant wilfully allowed deceased to enter the dynamo engine room, which it is claimed was an unsafe place, not under the direction of the mine manager before all conditions had been made safe; (3) that the mine manager wilfully failed to see that the dynamo engine room was properly marked and a danger signal displayed calling attention to the condition; (4) that the appellant wilfully failed to have the engine house examined every morning and to make a daily record of such examination before the men were allowed to go to work and the engineer to enter such engine house, and (5) that appellant wilfully failed to require the deceased to be in constant attendance at the hoisting engine and required him to be away from the hoisting engine and at the dynamo engine while men were underground.

It was the duty of the appellant under paragraph (i) of section 4 of the Miners Act to have all boilers used in generating steam in and about the mine kept in good order, and to have the boilers thoroughly examined and inspected by a competent boiler-maker or other qualified person not an employe of the appellant as often as once in every six months, and the result of every such inspection shall be reported on suitable blanks to the state inspector. We are of the opinion that in the term boilers are included all pipes and connections between the boilers and the steam chest or engine. There had been no inspection whatever of the boilers by any person not an employe of appellant made as the statute requires for over a year prior to the accident.

Section 34 of the Miners Act provides: “In this act the words ‘mine’ and ‘coal mine’, used in their general sense, are intended to signify any and all parts of the property of a mining plant on the surface or underground, which contribute directly or indirectly under one management, to the mining or handling of coal.” Section 18 of the same act prescribes the duties of mine examiners, among which are “to visit the mine before the men are permitted to enter it.” * * * “He shall then inspect all places where men are expected to pass or to work and observe whether there are any recent falls.” * * * (c) “The mine examiner shall make a daily record of the conditions of the mine, as as he found it, in a book kept for that purpose which shall be preserved in the office for the information of the company, the -inspector and all persons interested, and this record shall be made each morning before the miners are permitted to descend into the mine.” In Spring Valley Coal Co. v. Grieg, 226 Ill. 511; 129 Ill. App. 386, it was held that this provision of the statute covered a stationary engine situated at the top of the mine, used to furnish power to haul coal cars to the retail dump and to bring hack empty cars by means of a cable. It was said that the duty of examination or inspection imposed by statute upon mine operators is not limited to the shafts and portions of the mine which are underground but includes machinery and other appliances used in removing coal and other material from around the top of the mine, including stationary engines used to haul coal to .the retail dump. Under this holding we must hold that it was the duty of the appellant to have the machinery inspected daily by the mine examiner and a record made of the conditions.

The deceased was in the dynamo engine room for between five and ten minutes before the explosion. He was an experienced engineer, having for five years'performed the same duties at appellant’s plant that he was performing on the morning he was injured. The accident was not seen by any person. It is a reasonable presumption from his character and habits that the deceased did what ordinary care for his own safety would require and that he had been accustomed to do. I. C. R. R. Co. v. Nowicki, 148 Ill. 29; I. C. R. R. Co. v. Prickett, 210 Ill. 140. The proof shows that the steam pressure on the boilers at the time of the accident was not excessive. It cannot be told with any certainty what was the cause of the explosion. If the boilers and their connecting steam pipes, which include the Austin separator and pipe which burst, had been properly examined before the accident some trouble or defect might have been discovered which could have been remedied and so have prevented the accident. The failure to have the boilers and connections examined and a report made of the conditions as required by statute was wilful and the statute makes appellant liable for all damages resulting from such wilful neglect irrespective of whether the deceased was in the exercise of due care or not.

Instruction 14, given at the request of appellee, states that if the jury believe from the evidence the dynamo engine house, dynamo engine, pipes, appliances and separator were a part of the appellant’s mining plant, and that the dynamo engine house was a dangerous place, and that appellant wilfully allowed deceased to enter said engine house and operate the dynamo engine not under the direction of the mine managers before all conditions had been made safe, and that deceased was the only hoisting engineer on duty at the mine, then the appellant was guilty of a wilful violation of the statute and if the jury believe such wilful violation of the law occasioned the death of deceased then they should find appellant guilty, even though they believe deceased neglected to drain the separator before starting said engine. That part of the instruction which recites if the jury believe the deceased “was the only hoisting engineer on duty” was immaterial and liable to mislead in view of some of the contentions of appellee, but we see no objection to the remainder of the instruction.

Concerning the contention of appellee that appellant wilfully failed to require the deceased to be in constant attendance at the hoisting engine, and required him to be away from the hoisting engine and at the dynamo engine while men-were underground, we hold that the absence of the engineer from the hoisting engine was not the proximate canse of his death. The evidence shows that at one time it was the duty of the hoisting engineer to leave his post and go to the railroad track to pick up a mail sack. It cannot reasonably be contended that if on one of such trips he had been struck by a train and killed, that leaving his hoisting engine was the proximate cause of - his death. Or if it was a part of his duties to assist the fireman in hitching up the mule, as he did just prior to the injury, and through some negligence of his he had caused the mule to kick him appellant could not reasonably contend that leaving the hoisting engine was the proximate cause of such injuries. The 15th and 16th and part of the 17th instructions given at the request of appellee were based on the theory that the absence of deceased from the hoisting engine was the proximate cause of his death. These instructions were erroneaus and the giving of them was reversible error. What has been said concerning the given instructions of appellee is applicable to some of the refused instructions of appellant and it is unnecessary to further comment upon them. For the errors pointed out the judgment is reversed and the cause remanded.

jReversed and remanded.