{ "id": 2563993, "name": "Frederick Gruenendahl, by His Next Friend, v. Consolidated Coal Co. of St. Louis", "name_abbreviation": "Gruenendahl v. Consolidated Coal Co. of St. Louis", "decision_date": "1903-03-02", "docket_number": "", "first_page": "644", "last_page": "649", "citations": [ { "type": "official", "cite": "108 Ill. App. 644" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "196 Ill. 594", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 841282 ], "opinion_index": 0, "case_paths": [ "/ill/196/0594-01" ] }, { "cite": "97 Ill. App. 109", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5298580 ], "opinion_index": 0, "case_paths": [ "/ill-app/97/0109-01" ] }, { "cite": "166 Ill. 572", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5497009 ], "opinion_index": 0, "case_paths": [ "/ill/166/0572-01" ] }, { "cite": "173 Ill. 169", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5537676 ], "opinion_index": 0, "case_paths": [ "/ill/173/0169-01" ] }, { "cite": "182 Ill. 268", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "176 Ill. 335", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "opinion_index": 0 }, { "cite": "174 Ill. 109", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5538686 ], "opinion_index": 0, "case_paths": [ "/ill/174/0109-01" ] }, { "cite": "133 Ill. 536", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5428326 ], "opinion_index": 0, "case_paths": [ "/ill/133/0536-01" ] }, { "cite": "101 Ill. App. 40", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2598349 ], "opinion_index": 0, "case_paths": [ "/ill-app/101/0040-01" ] } ], "analysis": { "cardinality": 527, "char_count": 12252, "ocr_confidence": 0.554, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08221714856734891 }, "sha256": "002315017ebc03c648ad30b8cd073e729c02b543c9abfd302a49bd1da157c8a0", "simhash": "1:3fa3f078193e96bc", "word_count": 2150 }, "last_updated": "2023-07-14T20:13:54.213761+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Frederick Gruenendahl, by His Next Friend, v. Consolidated Coal Co. of St. Louis." ], "opinions": [ { "text": "Mr. Justice Worthington\ndelivered the opinion of the court.\nAs this judgment must be reversed and the case remanded for error in giving instructions for defendant in error, it would not be proper to comment in detail upon the evidence.\nIt suffices to say, that in our judgment there is no error in refusing to instruct the jury to find for defendant.\nAs to when a peremptory instruction, taking a case from the jury, should be given, is fully discussed in St. Louis National Stock Yards v. Godfrey, 101 Ill. App. 40, citing and comparing the decisions of the Supreme Court upon the question. In this case it is said :\n\u201cThe rule now is, that where there is evidence tending to prove all that is required to warrant a recovery, the court should submit the case to the jury, without regard to what the presiding judge may, at the time, think the court would hold as to the weight of the evidence in case of a motion for a new trial.\u201d\nApplying this rule to the case at bar, we think it would have been error to take the case from the jury.\nThe twenty-sixth instruction for the defendant is as follows :\n\u201c The court instructs you that when the plaintiff avers that the defendant was guilty of negligence, it is not sufficient that he bring some witnesses to prove that it was guilty of negligence; but after you have considered all the evidence, the proof in this case must show by the greater weight of that evidence that the plaintiff has proved that the defendant was guilty of the negligence charged in the first, fifth and seventh counts of the declaration, and he must also prove by the greater weight of the evidence that he himself was using ordinary care for his own safety at the time he was injured.\u201d\nThe first part of this instruction, namely, \u201c It is not sufficient if he bring some witnesses to prove it was guilty of negligence,\u201d etc., is open to criticism. \u201cSome\u201d is an indefinite term, and might refer to the number of witnesses, or to their character, or to their interest in the suit. In other words, it might be understood to characterize a class of witnesses, and so understood, the instruction would be error. While we do not hold this part of the instruction to constitute reversible error in this case, its form is not to be approved.\nThe latter part of the instruction contains material error. It was not necessary for plaintiff to prove the negligence charged in each of the three counts named, in order to recover. The instruction tells the jury in substance that it was necessary. It was sufficient if the plaintiff proved the negligence charged in any one of the three counts. One good count in a declaration, if sustained by the evidence, is sufficient to support a verdict. Hurd\u2019s Stat., Chap. 110, Sec. 58; Shreffler v. Nadelhoffer, 133 Ill. 536; I. C. R. R. Co. v. Cozby, 174 Ill. 109.\nThe twentieth instruction given for defendant in error is as follows:\n\u201c The court instructs the jury that if you believe from the evidence the compressed air pipe, slate rock and other rubbish, mentioned in the seventh count of the declaration, were placed by the defendant in a place that was in use generally in mines of similar character in the vicinity of this mine, that they were of the character generally found and placed in such mines, and the said compressed air pipe was the pipe in general use in such mines, both as to its character, size and location, then the defendant was not guilty of any negligence in placing said pipe where it was or in placing the said rock, slate and other rubbish, and you will find for the defendant as to said count.\u201d\nThe twenty-fifth and twenty-eighth instructions are similar in substance.\nThese instructions invaded the province of the jury, and in addition do not state correct propositions of law. It does not follow necessarily, that defendant was not negligent, although the compressed air pipe, slate rock and other rubbish were placed in defendant\u2019s mine in a place that was in general use in similar mines in the vicinity, as stated in the twentieth instruction; or that the location of the props and the construction of the tracks were similarly placed in other mines, as referred to in the twenty-sixth and twenty-eighth instructions.\nIt was for the jury to decide upon the evidence in this particular case, considering all of these conditions, whether or not the defendant was negligent. The case of the C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 335, cited by defendant in error in support of these instructions, is not in point. On the contrary, in that case it is said, \u201c The manner of constructing a railroad is an engineering question;\u201d and as such in the case referred to, the court holds that it is not for the jury. But in the case at bar, the nearness of the prop, the location of the air pipe, the throwing of \u201c gob \u201d and other material were involved, and these are not questions of engineering. In the Driscoll case, supra, the court say, \u201cthe only question proper to submit to a jury in such cases is, whether the premises as they existed at the time of the injury were reasonably safe.\u201d In the case at bar, this was a question for the jury to answer, but the instructions given told the jury how to answer it, if the same conditions existed generally in similar mines in the vicinity.\nIt is error to instruct a jury what acts or omissions do, or do not, constitute negligence. C. & A. R. R. Co. v. Kelly, 182 Ill. 268; Pennsylvania Co. v. McCaffrey, 173 Ill. 169; C. & A. R. R. Co. v. Anderson, 166 Ill. 572.\nThe instructions referred to tell the jury that if the conditions mentioned in them are usual and customary in other mines in the vicinity, they do not constitute negligence.\nThe thirty-second instruction is to the effect that if in passing the prop the plaintiff \u201c could have discovered how close it was, and could have learned whether the same was reasonably safe, and if he failed to exercise such care as to ascertain how close the prop was to the car, and whether the same was reasonably safe, and was injured because he failed to exercise such care, then he can not recover.\u201d\nThis instruction omits the qualifying words \u201c if he could, etc., by exercising reasonable or ordinary care.\u201d Plaintiff in error was driving a mule\u2014a \u201cbad\u201d mule, or \u201c balky \u201d mule, as stated by some witnesses\u2014over 500 feet of track, in a dark mine, with a miner\u2019s lamp only to light him, hauling loaded or empty coal cars. He had been at work there a part of three days only. He could, doubtless, by close inspection,' have seen all the surrounding conditions. But the word \"could\u201d unqualified, includes whatever might possibly have been done. This is not the degree of care required of servants in examining places where they work. When they use reasonable care in such examinations, they have done all that is required of them. The degree of care required is correctly stated in Bailey\u2019s Master\u2019s Liability to Servants, p. 160, as follows: \"He must use reasonable care in examining his surroundings, to observe and take such knowledge of dangers as can be attained by observation.\u201d\nThe thirty-fourth instruction told the jury that \u201cThe plaintiff and those who loaded coal in the cars were fellow-servants.\u201d\nIt is generally a question of fact for the jury to decide\u2019 upon the evidence and under the instructions of the court as to what constitutes fellow-servants. But when the undisputed evidence shows that they are fellow-servants, it is not error for the court to so hold as a matter of law. C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 335.\nThe undisputed evidence in this case shows that plaintiff in error and those who loaded his cars, were fellow-servants. For this reason, the instruction as given is not error.\nThe case of the Consolidated Coal Co. v. Lundak, 97 Ill. App. 109, affirmed in 196 Ill. 594, has stated the law with reference to rules of a mining company, that are contrary to public policy, and that do not, therefore, operate as a contract against negligence on the part of the mine operator. These cases will be sufficient guides in any subsequent trial of the present case, and as this judgment must be reversed for reasons before mentioned, it is not necessary to discuss the questions presented growing out of the rules of the defendant in error admitted in evidence, and the instructions given referring to them.\nJudgment reversed and case remanded.", "type": "majority", "author": "Mr. Justice Worthington" } ], "attorneys": [ "R. E. Dorsey and Burton & Wheeler, attorneys for plaintiff in error.", "Wise & McNulty, attorneys for defendant in error; R. A. Holland, Jr., of counsel." ], "corrections": "", "head_matter": "Fourth District\nAugust Term, 1902.\nFrederick Gruenendahl, by His Next Friend, v. Consolidated Coal Co. of St. Louis.\n1. Practice\u2014When the Case Should be Submitted to the Jury.\u2014Where there is evidence tending to prove all that is required to warrant a recovery, the court should submit the case to the jury, without regard to what the presiding judge may, at the time, think the court would hold as to the weight of the evidence in case of a motion for a new trial.\n2. Instructions\u2014Employing Indefinite Terms Not to be Commended.\u2014An instruction employing such indefinite terms as \u201c some witnesses,\u201d is not to be commended.\n3. Same\u2014That it is Necessary to Prove Negligence Charged in Each Count, Erroneous.\u2014An instruction telling the jury that it is necessary for the plaintiff to prove the negligence charged in more than one count is erroneous.\n4. Same\u2014As to What Does Not Constitute Negligence, Erroneous.\u2014An instruction which attempts to tell the jury what does not constitute negligence is erroneous as invading the province of the jury.\n5. Same\u2014Erroneous Statement of Degree of Care Required of Servants in Examining Places Where They Work.\u2014An instruction that if in passing a prop in a coal mine the plaintiff \u201c could have discovered how close it was, and could have learned whether the same was reasonably safe,\u201d etc., is an erroneous statement of the degree of care required of servants in examining places where they work, as it omits the qualifying words \u201c if he could, etc., by exercising reasonable or ordinary care.\u201d\n6. Fellow-Servants\u2014As to What Constitutes, Generally a Question for the Jury.\u2014It is generally a question of fact for the jury to decide upon the evidence, and under the instructions of the court, as to what constitutes fellow-servants. But when the undisputed evidence shows that they are fellow-servants, it is not error for the court to so hold as a matter of law.\nTrespass on the Case, for personal injuries. Error to the Circuit Court of Madison County; the Hon. Martin W. Schaffer, Judge presiding. Heard in this court at the August term, 1902.\nReversed and remanded.\nOpinion filed March 2, 1903.\nSuit for personal injuries. Verdict and judgment for defendant.\nPlaintiff in error, seventeen years old, drove a mule drawing coal cars in defendant in error\u2019s mine. In passing, or while near a prop, his leg was in some way injured, making amputation necessary.' He had worked in the mine for parts of two days, before the day of the accident, but had worked in similar mines for a year or more.\nThere are seven counts in the declaration, but as the court directed the jury to disregard the second, third, fourth and sixth, it is only necessary in deciding the case, to refer to the first, fifth and seventh, which, after the usual averments of due care, etc., charges negligence in substance as follows:\n1st count. That plaintiff was injured by the track and a prop being in an unsafe condition and too close together, by means whereof plaintiff\u2019s leg was caught between the prop and car.\n5th count. That plaintiff employed timber-men to set props along the track and each side thereof, and that it was the duty of such men to set the props along the track far enough from the track to prevent cars \"from striking against the same; that the props were set too close to the track, whereby the injury resulted, etc.\n7th count. That it was defendant\u2019s duty to furnish a reasonably safe place for plaintiff to work, but failed so to do, and furnished an unsafe place on account of large quantities of coal, compressed air pipes, slate rock and other rubbish being along the track, by means whereof plaintiff\u2019s foot' was caught and crushed between a car and prop \"and plaintiff damaged, etc.\nDefendant pleaded not guilty.\nR. E. Dorsey and Burton & Wheeler, attorneys for plaintiff in error.\nWise & McNulty, attorneys for defendant in error; R. A. Holland, Jr., of counsel." }, "file_name": "0644-01", "first_page_order": 666, "last_page_order": 671 }