#### Cardiff Coal Co. v. Edward N. Waybright, Adm’r.

1. Pleading—Variance Between Declaration and Proof.—Proof that a party injured in a mine proceeded to the shaft to give an order, not by reason of any direction from the superintendent, will not sustain a recovery on a declaration alleging that the superintendent gave him the order to do what he did.

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Livingston County; the Hon. John H. Moffett, Judge presiding. Heard in this court at the October term, 1903.

Reversed and remanded.

Opinion filed April 21, 1903.

William McNett, John W. Blee and R S. McIlduff, attorneys for appellant.

John E. Pollock, A. C. Norton and J. M. Weakly, attorneys for appellee.

Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is a suit by the administrator of the estate of Martin Clausen, deceased, to recover damages for his death, which occurred at the coal mine of appellant in Livingston' county, February 2, 1900. Clausen was an employe of appellant, engaged in trimming cars as they were loaded with coal from the mine, and performing other services as a common laborer. The coal was brought from the mines through a shaft by means of cages operated by steam. The shaft comprised two compartments, a north and a south one, and there was a cage in each shaft, one of which ascended while the other descended. From the superstructure over the shaft, there was a chute running west, which was used to load cars upon the railroad tracks beneath. This chute was supplied with screens for the purpose of sorting the coal into different sizes, as it was loaded upon the ears, and was known as the railroad chute. On the east there was also a chute used for loading wagons, known as the farmer’s chute. The coal, when mined, was placed in *562cars, which, when brought up to the chutes in the cages, dumped their contents automatically. Each car was, however, provided with but one movable end, so that it had to be placed upon the cage in such a way that the movable end would be toward the chute into which it was desired to dump the load. Just before Clausen was injured, an accident occurred to one of the screens in the railroad chute, which made it necessary for all of them to be shut down until repairs could be made. When the screens were shut down, coal was ordered to be sent up from the bottom .to be turned into the farmer’s chute, which could be loaded only from, the south cage, and the coal cars were so placed on the south cage that they would dump the coal to the east. While the repairs were being made, Parker, the superintendent of the paine, went over to a car under the railroad chute where Clausen and one Overly were working, and told Clausen there was complaint from customers that the coal shipped them was dirty; that he wanted it properly cleaned, and would h.old Clausen responsible for that work. The screens having .been repaired, Parker, according to the testimony of Overly, said to Clausen, “ Now we are ready for coal oh this side.” This necessitated the giving of orders to the men below to change the position of the cars in the cages so that they would dump into the railroad chute. Parker and Clausen thereupon left the car and went toward the east, Parker going first. Clausen went directly to the shaft, opened the gate to the fence around it, stepped in and leaning over the south side of the shaft, called down to the men below. While so occupied the south cage descended rapidly, struck him, and inflicted injuries which caused his death. Parker at the time was about thirty-five feet from the shaft. Upon the trial of this case in the court below, there was a verdict and a judgment in favor of appellee for $4,000. Appellant assigns many errors, but the principal one is that the verdict is not sustained by the evidence.

The declaration originally consisted of five counts. Appellee, however, dismissed the first and second counts and the *563court sustained a motion of appellant, made at the conclusion of appellee’s testimony, instructing the jury to find the issues for appellant, on the fifth count.

The third count charges that Clausen was directed by the superintendent in charge of the mine, to go to the mouth of the shaft and call to the men working there to change the car, so that it would come up loaded, and so placed as to be dumped on the side desired; that Clausen went to the mouth of the shaft and called down to the men below; that while he was so doing, the defendant so negligently and carelessly managed the cages and machinery of the company, that a cage was dropped upon Clausen without any warning or signal having been given that the cage was about to descend; that Clausen was struck with great force and violence, and then and there killed.

The fourth count charged that it was the duty of appellant to provide a signal for the purpose of changing the car, which it neglected to do; that it wholly neglected to provide a safe means of communication from the top to the bottom of the shaft; that the only means provided by defendant for such communication was to have one of its employes stoop over the mouth of the shaft and call to the men below to change the car; that Clausen, who was in the employ of defendant, “ went to the mouth of the shaft (by the direction and order of one William Henry Parker, the superintendent of said defendant), as he was required by his duty to do, and called to the men below to change the car,” and while so doing was struck by the cage; that Clausen was a new man at the business and had not been properly instructed as to the danger attending the operation of calling down the shaft. It will be seen that while there was a charge, in the third count, that appellant so negligently and carelessly managed its cages and machinery that the cage was dropped upon Clausen without any warning, yet there is no charge that Clausen’s duties called him to the mouth of the shaft, and no reason is shown why he should have been there, except that he was ordered to go there by the superintendent. The *564charge in the fourth count that Clausen went to the mouth of the shaft, by the direction and order of the superintendent, “ as he was required by his duty to do,” apparently bases the duty to go to the shaft, wholly upon the order of the superintendent. The whole theory of the declaration was that Clausen went to the mouth of the shaft by the direction of Parker. The court evidently adopted that theory, and its instructions to the jury were given in accordance therewith.

The jury also found specially in answer to an interrogatory submitted to them, that appellant was guilty of negligence, causing or contributing to the death of Clausen, based on an order or direction, given by superintendent Parker to Clausen, on the day of and prior to. the accident. Counsel for appellee in their argument say, in speaking of Clausen’s action in going to the mouth of the shaft, “ the question of whether or not Clausen was ordered to do his duty, from all the circumstances proven in the case, was submitted to the jury, and counsel for appellee in their argument before the jury, explicitly said to the jury, that unless they believed from the evidence that Clausen was ordered by the superintendent to do this work, they should find for the defendant. We took that position there, and we are willing to stand by it in this court. If there was no order proven, we have no case. If there was an order proven, the appellant has no case.” There was, indeed, some evidence tending to show that Clausen was following a custom existing at the mine, in calling down the shaft to the men below to change the cages, and that this custom was so general as to charge those engaged in the operation of the cars with notice thereof; but the direct charge in the declaration, and the theory relied upon by court and the counsel for appellee on the trial of the cause, was that Parker gave Clausen the order to go to the mouth of the shaft, and the jury found that such, order was given. If, therefore, the judgment in this case is sustained, it must be upon the ground that Parker gave Clausen the order in question. There *565was no direct proof in the evidence that Parker gave Clausen such an order, and appellee relied entirely upon circumstantial evidence to establish such fact. Parker swore that he did not say “ How we are ready for coal on this side,” at the time the screens were repaired, as testified to by the witness Overly, but even if he had, it can hardly be said that the same was proof of an order to Clausen to call down the shaft. Parker was the only living witness to that conversation, if any occurred between him and Clausen from the time they left the car until Clausen met his death, and he positively denies that he ordered Clausen to go to the shaft and call down to the men below. We are of opinion that the proof failed to show that Clausen was directed by Parker to call down the shaft. The inference most favorable to appellee, that could be drawn from the proof, is, that Clausen proceeded to the shaft to give the order, not by reason of any direction from Parker, but in accordance with a custom prevailing at the mine. Under the declaration as framed, however, such proof would not justify a recovery.

The judgment of the court below is accordingly reversed and the cause remanded.