Alsdurf v. Big Four Wilmington Coal Co. , 198 Ill. App. 15 ( 1916 )

Mr. Justice McGoorty

delivered the opinion of the court.

2. Pleading, § 474^*—when omission to change papers upon order of amendment cured after judgment. In an action by a plaintiff as “Administrator of the Estate of Carra Martin” where the court ordered the amendment of all papers in the case so as to read “Administrator of the Estate of Martin Carra,” it is immaterial after judgment that the praecipe and summons were not changed by interlineation subsequent to the amendment so as to conform thereto, the order of amendment being sufficient to support the verdict after judgment. _ 3. Appeal and error, § 1544^*—when giving of instruction to find defendant guilty if plaintiff made out case as alleged in declaration harmless error. Although the practice in actions based on negligence of giving instructions to find defendant guilty if plaintiff made out his case by a preponderance of the evidence as alleged in the declaration is not to be commended, yet such instructions are not reversibly erroneous where every count in the declaration contains allegations of the facts necessary to a recovery. 4. Instructions, § 159^*—when must he taken as a series. In an action brought under the Miners’ Act (J. & A. If 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of defendant’s alleged wilful violation of the act, an instruction in effect that plaintiff might recover for death of which a wilful violation of the act by defendant was the proximate cause, regardless of whether such violation was charged in the declaration, is not erroneous where other instructions given for plaintiff state fully that plaintiff can recover only for violations of the act as charged in the declaration, since in such case instructions must he taken as a series. 5. Mines and minerals, § 149^*—when not necessary for plaintiff to prove that intestate was directed to go to place where he was killed. In an action brought under the Miners’ Act (J. & A. jf 7475 et seq.), tp recover for the death of plaintiff’s intestate as a result of defendant’s alleged wilful violation of the act, it is not necessary to prove that intestate was specifically directed to go to the place where he was killed, where defendant does not contend that at the time of his death intestate was not acting within the scope of his employment. 6. Mines and minerals, § 188^*—when instruction not erroneous as assuming roof of mine in dangerous condition. In an action brought under the Miners’ Act (J. & A. j[ 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of defendant's alleged wilful violation of the act, an instruction that “if the jury believed from the evidence that the roof of the room where plaintiff’s decedent was killed was in a dangerous condition, and that said dangerous condition could have been ascertained by the mine examiner within twelve hours preceding the day aforesaid, and that the defendant was guilty of the wilful omission alleged,” held not objectionable as assuming that the roof was in a dangerous condition. 7. Mines and minerals, § 191*—when instruction not erroneous as placing duty upon defendant to inspect mine continuously for certain period before accident. In an action brought under the Miners’ Act (J. & A. If 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of defendant’s alleged wilful violation of the act, an instruction that “if the jury believe * * * said dangerous condition could have been ascertained by the mine examiner within twelve hours preceding the day aforesaid,” held not erroneous as telling the jury that it was the duty of defendant to inspect all places in the mine for twelve hours continuously preceding the beginning of the day in question, the instruction clearly presenting the issue as to whether there was a dangerous condition which could have been discovered at any time prior to the commencement of the working day of plaintiff’s intestate. 8. Instructions, § 151*-—when requested instructions covered by given instructions properly refused. Requested instructions which are fully covered by other instructions given on behalf of the same party, are properly refused. 9. Mines and minerals, § l%2*-r-when .question as to examination of roof of mine by mine examiner for jury. In an action brought under the Miners’ Act (J. & A. j[ 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a stone from the roof of the room where intestate was working when killed, the question whether the mine examiner examined such room as required by section 21 of such Act (J. & A. If 7495) is a question for the jury. 10. Mines and minerals, § 176*—when evidence sufficient to establish that mine examiner could have ascertained dangerous condition of roof of mine. In an action brought under the Miners’ Act (J. & A. 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a large stone from the roof of the room where intestate was working when killed, where the evidence was conflicting as to whether the mine examiner inspected the room as required by section 21 of the Act (J. & A. If 7495), evidence held to establish the fact that the mine examiner in the exercise of reasonable care would have discovered such a dangerous condition, if it existed. 11. Mines and minerals, § 86*—when operator of mine not relieved from duty of inspecting roof. The fact that a miner is required by section 23 of the Miners’ Act (J. & A. If 7497) to sound and thoroughly examine the roof of his working place before commencing work does not relieve the operator from the duty imposed by section 21 of the same Act (J. & A. If 7495) to inspect such roof. 12. Mines and minerals, § 127^*—when miner not guilty of contributory negligence in working under dangerous roof. A miner has the right to rely on the performance of the duty imposed on the mine examiner by section 21 of the Miners’ Act (J. & A. If 7495), and, in the absence of evidence of a mark in such working place indicating the opinion of the examiner that the roof was dangerous, cannot be held guilty of contributory negligence in working under a stone which later falls and kills him. 13. Mines and minerals, § 84*-—what constitutes a wilful violation within Mining Act. A wilful violation within the meaning of the Miners’ Act (J. & A. If 7475 et seq.), means a conscious violation. 14. Mines and minerals, § 127*—when miner entitled to benefit of sitperior knowledge of mine examiners. Under the Miners’ Act (J. & A. If 7475 et seq.), a miner is entitled to the benefit of the superior knowledge and experience of those charged with the duty of discovering dangerous conditions in the mine. 15. Mines and minerals, § 176*—when evidence sufficient to establish that mine examiner could havb discovered condition of stone in roof of mine within specified time. In an action brought under the Miners’ Act (J. &. A. If 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a large stone from the roof of the room where intestate was working in a long wall mine when killed, evidence held to show that the condition of the stone could have been discovered by examination at any time within twelve hours of its fall, although there was also evidence that in such a mine a stone can change or break within a few minutes. 16. Mines and minerals, § 182*—when question whether mine examiner could have discovered dangerous condition of roof for jury. In an action brought under the Miners’ Act (J. & A. ff 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a large stone from the roof of the room where intestate was working when killed, the question whether the dangerous condition existed when the mine examiner inspected the room, and whether in the exercise of reasonable care such examiner should have discovered such condition, is for the determination of the jury on all the evidence. 17. Mines and minerals, § 181*—when question whether proximate cause of death of workman due to failure of mine examiner to use care to ascertain condition of roof for jury. In an action brought under the Miners’ Act (J. & A. It 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a large stone from the roof of the room where intestate was working when killed, the .question whether the proximate cause of intestate’s death was the failure of the mine examiner to exercise reasonable care to discover such dangerous condition when he made his examination is for the determination of the jury on all the evidence. 18. Mines and minerals, § 176^*—when evidence sufficient to sustain verdict for death of miner due to falling of stone from roof of mine. In an action brought under the Miners’ Act (J. & A. H 7475 et seq.), to recover for the death of plaintiff’s intestate as the result of the fall of a large stone from the roof of the room where intestate was working when killed, a verdict for plaintiff held not manifestly against the weight of the evidence.