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utes the explosion occurred which caused that all the conditions of the mine had the death of Fulton and seriously injured not been made safe at such time, as charged the helper. There was contradictory evi. in the declaration.” dence as to the instructions given by the Seventh, the correctness of the overrul. mine manager to Fulton at the time he ing of a motion to strike out the 5th count started into the west roadway. One version of the declaration, and in refusing to inwas that Fulton was told to wait awhile, struct the jury that no recovery could be until an examination had been made by had under said count, because no basis existthe mine manager with a safety lamp. An. ed in the evidence for the asserted liabilother version implied from the evidence was ity. that Fulton, entirely of his own volition, Eighth, the correctness of the overruling proceeded to the place where he was injured; of a motion to strike out the 6th count of and still another hypothesis was that the declaration and a request for an instrucFulton was directed to proceed with the tion that no evidence had been introduced work without any caution. At the time of of any neglect as to the fan or machinery the explosion the mine manager, mine ex. whereby the air currents of the mine became aminer, and others were in the south road- obstructed and stopped. way.

Before considering these alleged errors, After the entry of judgment the cause however, we must dispose of a motion to was brought direct to this court on the dismiss. It is urged that as the direct apground that a constitutional right was peal to this court rests alone upon the asclaimed in the court below and denied. sertion of the repugnancy of the Illinois

The errors assigned which have been ar. mining act to the Constitution of the Unitgued at bar present for consideration the fol. ed States, and as the claim of repugnancy lowing questions:

is alone based upon certain provisions of First, the constitutionality of the Illinois that act providing for licensing mine manmining act of 1899, upon which this action agers and examiners, defining their duties, was founded.

and compelling mine owners to employ only Second, the correctness of instructions to licensed managers and examiners, the writ the jury on the subject of the proximate of error should be dismissed, because there cause of the accident in the event Fulton is ground broad enough to sustain the judg. went into the west roadway by direction of inent wholly irrespective of the provisions the mine manager.

of the Illinois act just referred to, which are Third, the correctness of a refusal to in asserted to be repugnant to the Constitution struct the jury to return a verdict for of the United States. This proposition is the defendant if they found that "Fulton, based upon the contention that the 1st at the time he was killed, was engaged in count of the declaration charges a violaa wilful act which endangered the lives tion of duty imposed by the statute directly or health of persons working in the mine upon the mine owner, irrespective of the rewith him or the security of the mine or its quirements of the statute as to licensed emmachinery, and that such wilful act on his ployees. But issue is taken on behalf of part contributed to his death."

the plaintiff in error in respect to the corFourth, the correctness of a refusal to rectness of this contention, and it is insisted instruct the jury that, if the death of Ful. that the 1st count is open to the same obton resulted in part from his reckless dis-jections which are urged against the others. regard of consequences, in view of his We think the motion to dismiss is without own surroundings, the plaintiff could not merit, because there is color for the contenrecover.

tion as to the unconstitutionality of the Fifth, the correctness of the overruling statute, as well in respect to the first as of motions to strike out the 2d and 3d to the other counts of the declaration. counts of the declaration, and of the refusal We come, then, to consider the first asto instruct the jury that no recovery could signed error, viz., the constitutionality of be had on these counts, because no evi- the Illinois mining act approved April 18, dence had been introduced to support the 1899, in force July 1, 1899, entitled, “An same.

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:

Providing for the Health and Safety of PerIf you believe from the evidence that sons Employed Therein.” Ill. Rev. Stat. the decedent, Fulton, just before the time chap. 93. of his death, entered the mine to work

It is conceded that the statute in question therein under the direction of the mine has been authoritatively interpreted by the manager, Wilson, then you are directed to supreme court of Illinois as imposing upfind the defendant ‘not guilty,' even though on mine owners responsibility for the de. you may further believe from the evidence faults of mine managers and mine examin. ers,--employees who are required by the the remainder of the act, are found, in secstatute to be selected by the mine owners tions relating to the subject of ventilation, from those holding licenses issued by the powder and blast, place of refuge, etc., restate mining board created by the statute. quirements to be observed in effect suppleAnd it is an alleged incompatibility be- menting the sections prescribing in detail tween such responsibility of the mine own the duties to be performed by the employees er and the obligation imposed upon the above mentioned. We think the omissions mine owner to employ only persons licensed of duty charged in the various counts in by the state, and the nature and char- the declaration are embraced in those in acter of the duties which the statute im- terms laid upon the mine manager or mine poses upon them, upon which is based the examiner. Considering this act, the supreme asserted repugnancy of the statute to the court of Illinois, in Henrietta Coal Co. v. Mar14th Amendment.

tin, 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:

Coal Co. 171 Pa. 193, 29 L.R.A. 808, 50 Am. “It shall be the duty of the general as- St. Rep. 801, 33 Atl. 237, and Williams v. sembly to pass such laws as may be neces. Thacker Coal & Coke Co. 44 W. Va. 599, sary for the protection of operative miners 40 L.R.A. 812, 30 S. E. 107, which cases dealt by providing for ventilation when the same with statutes which, in their general purmay be required and the construction of es- pose, were similar to the Illinois act. The capement shafts, with such other appliances Illinois court declined, however, to hold, as as may secure safety in all coal mines, and was done in the cases referred to, that, where to provide for the enforcement of said laws a statute directly imposed duties upon a mine by such penalties and punishments as may manager, the negligence of such mine manbe deemed proper.”

ager could not be imputed to the owner, In carrying out this constitutional re- and, indeed, that the owner could not be quirement the general assembly of Illinois inade responsible for the act of such emhas, from time to time, legislated for the ployee without causing the statute to be protection of miners. The act of 1899, unconstitutional. The Illinois court expresshere assailed as repugnant to the Constitu- | ly held that, under the Illinois mining act, tion of the United States, as said by the a mine manager and mine examiner were court of appeals for the seventh circuit (68 vice principals of the owner, and were enL.R.A. 168, 66 C. C. A, 247, 133 Fed. 197), gaged in the performance of duties which grew out of the desire “that every precau- the owner could not delegate to others in tion should be taken against the unusual such manner as to relieve himself from rehazards and dangers incident to the inhabit- sponsibility. Observing that, in a number ancy of mines. It was intended, and in- of its former decisions, the Illinois court tended rightly, to protect with all known had assumed the law to mean what it exexpedients every person whose occupation pressly decided in the Henrietta Case it did required him to labor in these subterranean mean, viz., that, in respect to the duties derooms and roadways."

volved upon the mine manager and mine The act is lengthy, covering 47 pages of examiner, those persons stood for the mine print in the appendix to one of the briefs. owner and were vice principals, performing In substance it created a state mining board, those duties. The court said: 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 or disreputable persons, and not to enable certificates to be furnished to those found the operator to shift to his employees his competent, and made it unlawful in the responsibility for the management of the operation of a coal mine to employ or suffer mine. any person, other than one possessing the

"The object of the mining act, as we gathproper certificate, to serve as a mine man- er from its various provisions, is to protect, ager, hoisting engineer, or mine examiner. so far as legislative enactment may, the Section 16 prescribed in detail the duties of health and persons of men employed in the mine managers and miners; § 17 set forth mines of the state while they are in the the duties of hoisting engineers; and by mines. The principal measures prescribed § 18 the duties of mine examiners are pre for this purpose require the exercise of scribed. Interspersed, however, throughout' 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 "If you believe from the evidence that manager who holds the certificate of the Wilson, the mine manager, directed Fulton state mining board is to lessen his responsi- to go into the west roadway, and that said bilities, and defeat, in great part, the be- Fulton did so in obedience to such order, neficent purposes of the act. To hold him and such order was the proximate cause of liable for a wilful violation of the act, or a Fulton's death, without the giving of which wilful failure to comply with its provisions Fulton would not have been killed, then the on the part of his examiner or manager, is jury is instructed that the plaintiff cannot to give force and effect to the statute ac recover in this case, and the verdict should cording to the intent of its makers, and to be for the defendant. You will note there prolong the lives and promote the safety that it follows, if you believe that this inand well-being of the miners.”

struction, if there was one, to Fulton, was Accepting this interpretation of the Illi- the proximate cause of his death, note that nois statute, and in view of the ruling in in passing upon that question you must deConsolidated Coal Co. v. Seniger, 179 Ill. terminate whether, first, if there was gas 370, 374, 375, 53 N. E. 733, that it is not there at that time; and whether, if there obligatory upon a mine owner to select a was, that was or was not the proximate particular individual, or to retain one when cause of his death. Now, by proximate cause selected, if found incompetent, we think the is meant efficient cause. In other words, if act is not repugnant to the 14th Amend the gas had not been there, would his death ment in any particular. In legal effect, du- have followed? And was gas being there ties are imposed upon the mine owner, cus- necessary to his death? Or was the instructomarily performed for him by certain em- tion, if there was one there, wilfully sending ployees,-duties which substantially relate him there, the thing which caused his death; to the furnishing of a reasonably safe place which was the greater cause ? That is a for the workmen. The subject was one pe- question of fact for you to determine. culiarly within the police power of the state, and the enactment of the regulations count- "I said it was for them to determine what ed upon we think was an appropriate exer- was the proximate cause if there was an cise of such power. The use and enjoyment order for this deceased to go into the mine, of mining property being subject to the rea- or whether it was the gas being there. Let sonable exercise of the police power of the the instruction be what I stated now, the state, certainly the rights, privileges, and last time; that covers it.” 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 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 har- gas, resulting in the explosion which caused mony with the principles of the common the death of Fulton, since to have allowed law applicable to the relation of master and the gas to accumulate was a disregard of servant, it being competent for the state to the positive duty towards Fulton imposed change and modify those principles in accord by the statute. Now, conceding that the with its conceptions of public policy, we mine manager ordered Fulton into the west cannot infer that the selection of mine own roadway, and conceding, further, that such ers as a class upon which to impose the lia-order of the manager was one of the causes bility in question was purely arbitrary and of the accident, for which no recovery could without reason. And the views just ex. be had because not counted on in the decpressed also adequately dispose of the con- | laration, what follows? Simply this, that tention that, by the statute, the mine owner two concurring causes contributed to the was denied the equal protection of the laws. death of Fulton,-one, the order of the mine

The asserted error next to be considered manager, for which recovery could not be relates to instructions to the jury on the had under the declaration, and the other, subject of the proximate cause of the acci- the neglect by the mine owner to perform dent in the event Fulton went into the west his statutory duty to prevent the accumu.

27 S. C.-27.

one

lation of the dangerous gases which led to It is asserted that the court erred in rethe accident. But, because of the fusing to give the following instructions: efficient causes, the order of the mine man- “If you believe from the evidence that the ager, under the pleadings, did not give rise to decedent Fulton, just before the time of his a right of recovery, it did not follow that death, entered the mine to work therein untherefore the owner was absolved from re- der the direction of the mine manager, Wil. sponsibility for the cause of the accident son, then you are directed to find the defor which he was liable. Washington & G. fendant, 'not guilty,' even though you may R. Co. v. Hickey, 166 U. S. 521, 41 L. ed. further believe from the evidence that all 1101, 17 Sup. Ct. Rep. 661.

the conditions of the mine had not been We next consider two contentions: a. made safe at such time, as charged in the That the trial court erred in refusing to in- declaration." struct the jury to return a verdict for the The requested charge was based upon the defendant if they found that Fulton, at the last paragraph of that portion of g 18 (b) of time he was killed, was engaged in a viola- the Illinois mining act, dealing with the tion of the statute which contributed to his duties of mine examiners, reading as foldeath; that is, the doing of a wilful act lows: which endangered his life and the lives or

“To post danger notices. (b) When workhealth of persons working in the mine with ing places are discovered in which accumuhim, and which jeopardized the security of lations of gas, or recent falls, or any dan. the mine or its machinery; and, b. That the gerous conditions exist, he shall place a concourt also erred in refusing to instruct that spicuous mark thereat as notice to all men if the death of Fulton resulted in part from to keep out, and at once report his finding his reckless disregard of consequences in to the mine manager. view of his known surroundings, the plain- “No one shall be allowed to remain in any tiff could not recover.

part of the mine through which gas is being Leaving out of view the contention that carried into the ventilating current, nor to the first requested instruction was rightly enter the mine to work therein, except unrefused because too general, and bearing in der the direction of the mine manager, un. mind that in an action to recover damages til all conditions shall have been made under the Illinois mining act a mine owner safe.” 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 act ing to show that Fulton, in entering and of the character contemplated by the stat. working in the mine, came under any of ute, or a reckless disregard by him of his these conditions, we think the instruction personal safety. While the evidence might

was rightly refused. have justified the inference that Fulton, be

The 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

recovery could be had under any go to the point where the explosion och 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 neg. tablished 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 mine in which he was killed against or con failure to construct crosscuts and stoptrary 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 par. fully and recklessly went to his destruction. ticulars. We think it is extremely doubt.

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V.

ful whether there was any evidence in the where a jury is wrongfully permitted, over record even tending to establish that, in the objection of the opposing party, to take long-wall mine of the character of the one into consideration, in reaching a verdict, here in question, crosscuts and stoppings counts of a declaration which have not been thereof were essential. But be this as it supported by any evidence, and where it is may, certain is it that there is no evidence impossible from the record to say upon whatever in the record tending to support which of the counts of the declaration the the claim that the absence of crosscuts and verdict was based, that the judgment enstoppings in the mine in question was in tered under such circumstances can be susany wise the cause of the accumulations of tained upon the theory that substantial gas or the retention of the accumulated gas rights of the objecting party had not been from the explosion of which Fulton was invaded. killed. We are also of opinion that there The judgment of the Circuit Court is was nothing in the evidence which would therefore reversed, and the case remanded to have justified the inference that the ab- that court for further proceedings consistsence of the wheel from the valve, forming ent with this opinion. 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 uncontra- NICHOLAS V. HALTER and Harry V. Hay. dicted testimony showed that but a very

ward, Plffs. in Err., brief interval, a minute or two, elapsed before a wrench was obtained, and the dis

STATE OF NEBRASKA, tance to the point where the gas had accumulated precludes the possibility of saying Constitutional law-state protection of that the evidence tended to show that the national flag. absence of the wheel could have been the 1. The protection of the national flag proximate cause of the accident. Under against illegitimate uses is not so exclusivethis condition of things we find it impos-ly intrusted to the Federal government as sible to say that prejudicial error did not to prevent the state of Nebraska from result. Maryland use of Markley v. Bald making it a misdemeanor, by the act of

April 8, 1903, to use representations of such win, 112 U. S. 490, 493, 28 L. ed. 822, 823, flag upon articles of merchandise for adver5 Sup. Ct. Rep. 278. And, of course, in a tising purposes. case like the one we are considering, we Constitutional law-privileges and imcannot maintain the verdict, as might be munities. done in a criminal case, upon a general ver- 2. No privilege of American citizenship dict of guilty upon all the counts of an in- is denied by the provision of Neb. act of dictment. Goode v. United States, 159 U. S. April 8, 1903, making it a misdemeanor to 663, 40 L. ed. 297, 16 Sup. Ct. Rep. 136. Nor use representations of the national flag upon

articles of merchandise for advertising purdoes § 57 of the Illinois practice act, chap.

poses. 110, Rev. Stat. Illinois, support the conten

Constitutional law-personal liberty. tion that errors of the character of those

3. The right of personal liberty guaranwe have just been considering must be teed by U. s. Const., 14th Amend., is not treated as not prejudicial. The section re- infringed by the provision of Neb. act April lied upon is as follows:

8, 1903, making it a misdemeanor to use “Whenever an entire verdict shall be given representations of the national flag upon on several counts, the same shall not be articles of merchandise for advertising purset aside or reversed on the ground of any defective count, if one or more of the counts Constitutional law-due process of law. be sufficient to sutain the verdict." 4. Property rights are not

not invaded This section has been held not to relate without due process of law, in violation of to counts which are vitally defective, but as of Neb. act Ápril 8, 1903, making it a misde

U. S. Const., 14th Amend., by the provision only providing that where a declaration

meanor to use representations of the nationconsists of several counts, and some of the al flag upon articles of merchandise for counts contain defects not vital, and yet advertising purposes. subject to be assailed by demurrer, a party Constitutional law-equal protection of the cannot wait until after the close of the evi.

laws. dence at the trial, and, a fortiori, after ver- 5. The exception in favor of newg. dict, and then for the first time question the papers, periodicals, books, pamphlets, etc., sufficiency of the counts. Chicago v. Loner. on which shall be printed representations of gan, 196 Îll. 518, 63 N. E. 1018; Consolidated advertisement, which is made by Neb. act of

the national flag, disconnected from any Coal Co. v. Scheiber, 167 Ill. 539, 47 N. E. April 8, 1903, prohibiting the use of repre1052. This statute, of course, lends no suposentations of the national flag for advertisport to the contention here made that ing articles of merchandise, does not make

poses.

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