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utes the explosion occurred which caused the death of Fulton and seriously injured the helper. There was contradictory evidence as to the instructions given by the mine manager to Fulton at the time he started into the west roadway. One version was that Fulton was told to wait awhile, until an examination had been made by the mine manager with a safety lamp. Another version implied from the evidence was that Fulton, entirely of his own volition, proceeded to the place where he was injured; and still another hypothesis was that Fulton was directed to proceed with the work without any caution. At the time of the explosion the mine manager, mine examiner, and others were in the south roadway.

After the entry of judgment the cause was brought direct to this court on the ground that a constitutional right was claimed in the court below and denied.

The errors assigned which have been argued at bar present for consideration the following questions:

First, the constitutionality of the Illinois mining act of 1899, upon which this action was founded.

Second, the correctness of instructions to the jury on the subject of the proximate cause of the accident in the event Fulton went into the west roadway by direction of the mine manager.

Third, the correctness of a refusal to instruct the jury to return a verdict for the defendant if they found that "Fulton, at the time he was killed, was engaged in a wilful act which endangered the lives or health of persons working in the mine with him or the security of the mine or its machinery, and that such wilful act on his part contributed to his death."

that all the conditions of the mine had not been made safe at such time, as charged in the declaration."

Seventh, the correctness of the overruling of a motion to strike out the 5th count of the declaration, and in refusing to instruct the jury that no recovery could be had under said count, because no basis existed in the evidence for the asserted liabil ity.

Eighth, the correctness of the overruling of a motion to strike out the 6th count of the declaration and a request for an instruction that no evidence had been introduced of any neglect as to the fan or machinery whereby the air currents of the mine became obstructed and stopped.

Before considering these alleged errors, however, we must dispose of a motion to dismiss. It is urged that as the direct appeal to this court rests alone upon the assertion of the repugnancy of the Illinois mining act to the Constitution of the United States, and as the claim of repugnancy is alone based upon certain provisions of that act providing for licensing mine managers and examiners, defining their duties, and compelling mine owners to employ only licensed managers and examiners, the writ of error should be dismissed, because there is ground broad enough to sustain the judgment wholly irrespective of the provisions of the Illinois act just referred to, which are asserted to be repugnant to the Constitution of the United States. This proposition is based upon the contention that the 1st count of the declaration charges a violation of duty imposed by the statute directly upon the mine owner, irrespective of the requirements of the statute as to licensed employees. But issue is taken on behalf of the plaintiff in error in respect to the correctness of this contention, and it is insisted that the 1st count is open to the same ob

Fourth, the correctness of a refusal to instruct the jury that, if the death of Fulton resulted in part from his reckless dis-jections which are urged against the others. regard of consequences, in view of his own surroundings, the plaintiff could not

recover.

Fifth, the correctness of the overruling of motions to strike out the 2d and 3d counts of the declaration, and of the refusal to instruct the jury that no recovery could be had on these counts, because no evidence had been introduced to support the

same.

We think the motion to dismiss is without merit, because there is color for the contention as to the unconstitutionality of the statute, as well in respect to the first as to the other counts of the declaration.

We come, then, to consider the first assigned error, viz., the constitutionality of the Illinois mining act approved April 18, 1899, in force July 1, 1899, entitled, "An Act to Revise the Laws in Relation to Coal

Sixth, the correctness of the refusal to Mines and Subjects Relating Thereto, and give the following instructions:

"If you believe from the evidence that the decedent, Fulton, just before the time of his death, entered the mine to work therein under the direction of the mine manager, Wilson, then you are directed to find the defendant 'not guilty,' even though you may further believe from the evidence

Providing for the Health and Safety of Persons Employed Therein." Ill. Rev. Stat. chap. 93.

It is conceded that the statute in question has been authoritatively interpreted by the supreme court of Illinois as imposing upon mine owners responsibility for the defaults of mine managers and mine examin

ers, employees who are required by the statute to be selected by the mine owners from those holding licenses issued by the state mining board created by the statute. And it is an alleged incompatibility between such responsibility of the mine owner and the obligation imposed upon the mine owner to employ only persons licensed by the state, and the nature and character of the duties which the statute imposes upon them, upon which is based the asserted repugnancy of the statute to the 14th Amendment.

the remainder of the act, are found, in sections relating to the subject of ventilation, powder and blast, place of refuge, etc., requirements to be observed in effect supplementing the sections prescribing in detail the duties to be performed by the employees above mentioned. We think the omissions of duty charged in the various counts in the declaration are embraced in those in terms laid upon the mine manager or mine examiner. Considering this act, the supreme court of Illinois, in Henrietta Coal Co. v. Martin, 221 Ill. 460, 77 N. E. 902, first commented

Section 29 of article 4 of the Illinois Con- upon the decisions in Durkin v. Kingston stitution of 1870 is as follows:

"It shall be the duty of the general sembly to pass such laws as may be necessary for the protection of operative miners by providing for ventilation when the same may be required and the construction of escapement shafts, with such other appliances as may secure safety in all coal mines, and to provide for the enforcement of said laws by such penalties and punishments as may be deemed proper."

Coal Co. 171 Pa. 193, 29 L.R.A. 808, 50 Am. as-St. Rep. 801, 33 Atl. 237, and Williams v. Thacker Coal & Coke Co. 44 W. Va. 599, 40 L.R.A. 812, 30 S. E. 107, which cases dealt with statutes which, in their general purpose, were similar to the Illinois act. The Illinois court declined, however, to hold, as was done in the cases referred to, that, where a statute directly imposed duties upon a mine manager, the negligence of such mine manager could not be imputed to the owner, and, indeed, that the owner could not be made responsible for the act of such employee without causing the statute to be unconstitutional. The Illinois court expressly held that, under the Illinois mining act, a mine manager and mine examiner were vice principals of the owner, and were engaged in the performance of duties which the owner could not delegate to others in such manner as to relieve himself from responsibility. Observing that, in a number of its former decisions, the Illinois court had assumed the law to mean what it expressly decided in the Henrietta Case it did mean, viz., that, in respect to the duties devolved upon the mine manager and mine examiner, those persons stood for the mine owner and were vice principals, performing those duties. The court said:

In carrying out this constitutional requirement the general assembly of Illinois has, from time to time, legislated for the protection of miners. The act of 1899, here assailed as repugnant to the Constitution of the United States, as said by the court of appeals for the seventh circuit (68 L.R.A. 168, 66 C. C. A. 247, 133 Fed. 197), grew out of the desire "that every precaution should be taken against the unusual hazards and dangers incident to the inhabitancy of mines. It was intended, and intended rightly, to protect with all known expedients every person whose occupation required him to labor in these subterranean rooms and roadways."

The act is lengthy, covering 47 pages of print in the appendix to one of the briefs. In substance it created a state mining board, authorized that body to examine candidates "The fact that the proprietor, if he emfor the position of state inspector of mines, ploys men to act in these capacities, is reand to certify the names of the successful quired to employ those who have obtained candidates to the governor, in whom was the certificate from the state mining board, vested the power of appointment. Moreover, is without significance. The purpose of that the statute fixed the qualifications of mine provision was, so far as possible, to guard managers, hoisting engineers, and mine ex- against the possibility of the proprietor emaminers, required candidates for such posi-ploying incompetent, intemperate, negligent, tions to be examined by the state board, and certificates to be furnished to those found competent, and made it unlawful in the operation of a coal mine to employ or suffer any person, other than one possessing the proper certificate, to serve as a mine manager, hoisting engineer, or mine examiner. Section 16 prescribed in detail the duties of mine managers and miners; § 17 set forth the duties of hoisting engineers; and by § 18 the duties of mine examiners are prescribed. Interspersed, however, throughout

or disreputable persons, and not to enable the operator to shift to his employees his responsibility for the management of the mine.

"The object of the mining act, as we gather from its various provisions, is to protect, so far as legislative enactment may, the health and persons of men employed in the mines of the state while they are in the mines. The principal measures prescribed for this purpose require the exercise of greater precaution and care on the part of

the mine owner for the safety of the miners | roadway by direction of the mine manager. than was required by the common law. To In the course of the charge to the jury the hold that he may shift his liability to any court said: person employed by him as examiner or manager who holds the certificate of the state mining board is to lessen his responsibilities, and defeat, in great part, the beneficent purposes of the act. To hold him liable for a wilful violation of the act, or a wilful failure to comply with its provisions on the part of his examiner or manager, is to give force and effect to the statute according to the intent of its makers, and to prolong the lives and promote the safety and well-being of the miners."

"If you believe from the evidence that Wilson, the mine manager, directed Fulton to go into the west roadway, and that said Fulton did so in obedience to such order, and such order was the proximate cause of Fulton's death, without the giving of which Fulton would not have been killed, then the jury is instructed that the plaintiff cannot recover in this case, and the verdict should be for the defendant. You will note there that it follows, if you believe that this instruction, if there was one, to Fulton, was the proximate cause of his death, note that in passing upon that question you must determinate whether, first, if there was gas there at that time; and whether, if there was, that was or was not the proximate cause of his death. Now, by proximate cause is meant efficient cause. In other words, if the gas had not been there, would his death have followed? And was gas being there necessary to his death? Or was the instruction, if there was one there, wilfully sending him there, the thing which caused his death; which was the greater cause? That is a question of fact for you to determine.

"I said it was for them to determine what was the proximate cause if there was an order for this deceased to go into the mine, or whether it was the gas being there. Let the instruction be what I stated now, the last time; that covers it."

Accepting this interpretation of the Illinois statute, and in view of the ruling in Consolidated Coal Co. v. Seniger, 179 Ill. 370, 374, 375, 53 N. E. 733, that it is not obligatory upon a mine owner to select a particular individual, or to retain one when selected, if found incompetent, we think the act is not repugnant to the 14th Amendment in any particular. In legal effect, duties are imposed upon the mine owner, customarily performed for him by certain employees, duties which substantially relate to the furnishing of a reasonably safe place for the workmen. The subject was one peculiarly within the police power of the state, and the enactment of the regulations counted upon we think was an appropriate exercise of such power. The use and enjoyment of mining property being subject to the reasonable exercise of the police power of the state, certainly the rights, privileges, and immunities of a mine owner as a citizen of It is contended that the effect of the defithe United States were not invaded by the nitions of proximate cause, made as above, regulations in question, and the imposition was to hopelessly confuse the jury. While of liability upon the owner for the violation it must be conceded that the instruction of such regulations, being an appropriate was greatly wanting in clearness, yet we exercise of the police power, was not want-think no prejudicial error was committed. ing in due process. And even although the Looking at the criticized instructions in conliability imposed upon the mine owner to re- nection with the context of the charge, it is spond in damages for the wilful failure clear that it was understood by all as imof the the mine manager and mine ex-porting that the mining company was at aminer to comply with the require- fault for the existence of the accumulated ments of the statute was not in harmony with the principles of the common law applicable to the relation of master and servant, it being competent for the state to change and modify those principles in accord with its conceptions of public policy, we cannot infer that the selection of mine own-roadway, and conceding, further, that such ers as a class upon which to impose the liability in question was purely arbitrary and without reason. And the views just expressed also adequately dispose of the contention that, by the statute, the mine owner was denied the equal protection of the laws. The asserted error next to be considered relates to instructions to the jury on the subject of the proximate cause of the accident in the event Fulton went into the west 27 S. C.-27.

gas, resulting in the explosion which caused the death of Fulton, since to have allowed the gas to accumulate was a disregard of the positive duty towards Fulton imposed by the statute. Now, conceding that the mine manager ordered Fulton into the west

order of the manager was one of the causes of the accident, for which no recovery could be had because not counted on in the declaration, what follows? Simply this, that two concurring causes contributed to the death of Fulton,-one, the order of the mine manager, for which recovery could not be had under the declaration, and the other, the neglect by the mine owner to perform his statutory duty to prevent the accumu

It is asserted that the court erred in refusing to give the following instructions:

"If you believe from the evidence that the decedent Fulton, just before the time of his death, entered the mine to work therein un

lation of the dangerous gases which led to the accident. But, because one of the one of the efficient causes, the order of the mine manager, under the pleadings, did not give rise to a right of recovery, it did not follow that therefore the owner was absolved from re-der the direction of the mine manager, Wilsponsibility for the cause of the accident for which he was liable. Washington & G. R. Co. v. Hickey, 166 U. S. 521, 41 L. ed. 1101, 17 Sup. Ct. Rep. 661.

a.

We next consider two contentions: That the trial court erred in refusing to instruct the jury to return a verdict for the defendant if they found that Fulton, at the time he was killed, was engaged in a violation of the statute which contributed to his death; that is, the doing of a wilful act which endangered his life and the lives or health of persons working in the mine with him, and which jeopardized the security of the mine or its machinery; and, b. That the court also erred in refusing to instruct that if the death of Fulton resulted in part from his reckless disregard of consequences in view of his known surroundings, the plaintiff could not recover.

son, then you are directed to find the defendant, 'not guilty,' even though you may further believe from the evidence that all the conditions of the mine had not been made safe at such time, as charged in the declaration."

The requested charge was based upon the last paragraph of that portion of § 18 (b) of the Illinois mining act, dealing with the duties of mine examiners, reading as follows:

"To post danger notices. (b) When working places are discovered in which accumulations of gas, or recent falls, or any dangerous conditions exist, he shall place a conspicuous mark thereat as notice to all men to keep out, and at once report his finding to the mine manager.

"No one shall be allowed to remain in any part of the mine through which gas is being carried into the ventilating current, nor to enter the mine to work therein, except under the direction of the mine manager, until all conditions shall have been made safe."

working in the mine, came under any of these conditions, we think the instruction was rightly refused.

Leaving out of view the contention that the first requested instruction was rightly refused because too general, and bearing in mind that in an action to recover damages under the Illinois mining act a mine owner is deprived of the defense of contributory We construe this provision of the statute negligence (Carterville Coal Co. v. Abbott, as relating to steps to be taken when a 181 Ill. 495, 502, 503, 55 N. E. 131), and as- mine or a portion thereof is discovered to suming that the refused instruction might be unsafe, and as relating to the necessary properly have been given if the tendency of work to be done in the mine under the imthe proof justified it, we think the instruc-mediate supervision and direction of the tion was rightly refused, because we are of mine manager to remedy the unsafe condiopinion that there was no evidence tending tion. As, however, there is no proof tendto show the doing by Fulton of a wilful acting to show that Fulton, in entering and of the character contemplated by the statute, or a reckless disregard by him of his personal safety. While the evidence might have justified the inference that Fulton, beThe remaining assignments assert the fore entering the west roadway, knew that commission of error by the trial court in it had not been cleared of gas, yet it can overruling motions to strike out the 2d, 3d, not be inferred that Fulton and his helper and 6th counts of the declaration, and suspected that gas had so permeated the in refusing to instruct the jury that roadway as to render it perilous to life to no recovery could be had under any go to the point where the explosion oc- of those counts, because no evidence had curred. The jury had been instructed that been introduced tending to establish the there could be no recovery if the proof es- commission of the particular acts of negtablished the contention of the mining com-ligence charged in those counts. Such pany that Fulton entered the part of the counts, as we have seen, related to the stopmine in which he was killed against or con- failure to construct crosscuts and trary to caution given him by the mine pings in the mine, and to an alleged defect manager, and, if Fulton was permitted to resulting from the absence of a wheel, and enter the west roadway without caution, it the consequent necessity of using a wrench is impossible, on this record, to infer that for the purpose of opening a valve to allow the jury would have been justified in find-condensed steam to escape as a prerequisite ing that it was obvious that to enter the to the movement of the ventilating fan. west roadway was so hazardous as to give We are constrained to the conclusion that support to the conclusion that Fulton wil-prejudicial error was committed in these parfully and recklessly went to his destruction. ticulars. We think it is extremely doubt

ful whether there was any evidence in the record even tending to establish that, in a long-wall mine of the character of the one here in question, crosscuts and stoppings thereof were essential. But be this as it may, certain is it that there is no evidence whatever in the record tending to support the claim that the absence of crosscuts and stoppings in the mine in question was in any wise the cause of the accumulations of gas or the retention of the accumulated gas from the explosion of which Fulton was killed. We are also of opinion that there was nothing in the evidence which would have justified the inference that the absence of the wheel from the valve, forming part of the mechanism to operate the ventilating fan, was the proximate cause of the presence of the gas in the west roadway where Fulton was killed. The uncontradicted testimony showed that but a very brief interval, a minute or two, elapsed before a wrench was obtained, and the distance to the point where the gas had accumulated precludes the possibility of saying that the evidence tended to show that the absence of the wheel could have been the proximate cause of the accident. Under this condition of things we find it impossible to say that prejudicial error did not result. Maryland use of Markley v. Baldwin, 112 U. S. 490, 493, 28 L. ed. 822, 823, 5 Sup. Ct. Rep. 278. And, of course, in a case like the one we are considering, we cannot maintain the verdict, as might be done in a criminal case, upon a general verdict of guilty upon all the counts of an indictment. Goode v. United States, 159 U. S. 663, 40 L. ed. 297, 16 Sup. Ct. Rep. 136. Nor does 57 of the Illinois practice act, chap. 110, Rev. Stat. Illinois, support the contention that errors of the character of those we have just been considering must be treated as not prejudicial. The section relied upon is as follows:

"Whenever an entire verdict shall be given on several counts, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts

be sufficient to sutain the verdict." This section has been held not to relate This section has been held not to relate to counts which are vitally defective, but as only providing that where a declaration consists of several counts, and some of the counts contain defects not vital, and yet subject to be assailed by demurrer, a party cannot wait until after the close of the evidence at the trial, and, a fortiori, after verdict, and then for the first time question the sufficiency of the counts. Chicago v. Lonergan, 196 Ill. 518, 63 N. E. 1018; Consolidated Coal Co. v. Scheiber, 167 Ill. 539, 47 N. E. 1052. This statute, of course, lends no support to the contention here made that

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where a jury is wrongfully permitted, over the objection of the opposing party, to take into consideration, in reaching a verdict, counts of a declaration which have not been supported by any evidence, and where it is impossible from the record to say upon which of the counts of the declaration the verdict was based, that the judgment entered under such circumstances can be sustained upon the theory that substantial rights of the objecting party had not been invaded.

The judgment of the Circuit Court is therefore reversed, and the case remanded to that court for further proceedings consistent with this opinion.

NICHOLAS V. HALTER and Harry V. Hay. ward, Plffs. in Err.,

V.

STATE OF NEBRASKA,

Constitutional law-state protection of national flag.

1. The protection of the national flag against illegitimate uses is not so exclusively intrusted to the Federal government as to prevent the state of Nebraska from making it a misdemeanor, by the act of April 8, 1903, to use representations of such flag upon articles of merchandise for advertising purposes.

Constitutional law-privileges and im

munities.

2. No privilege of American citizenship is denied by the provision of Neb. act of April 8, 1903, making it a misdemeanor to use representations of the national flag upon articles of merchandise for advertising purposes.

Constitutional law-personal liberty.

3. The right of personal liberty guaranteed by U. S. Const., 14th Amend., is not infringed by the provision of Neb. act April 8, 1903, making it a misdemeanor to use representations of the national flag upon articles of merchandise for advertising purposes.

Constitutional law-due process of law.

4. Property rights are not invaded without due process of law, in violation of U. S. Const., 14th Amend., by the provision of Neb. act April 8, 1903, making it a misdemeanor to use representations of the national flag upon articles of merchandise for advertising purposes. Constitutional law-equal protection of the laws.

5. The exception in favor of newspapers, periodicals, books, pamphlets, etc., on which shall be printed representations of advertisement, which is made by Neb. act of the national flag, disconnected from any April 8, 1903, prohibiting the use of representations of the national flag for advertising articles of merchandise, does not make

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