#### Kate Brown Wyzard, Administratrix, Appellee, v. Vivian Collieries Company, Appellant.

(Not to be reported in full.)

Abstract of the Decision.

1. Mines and minerals, § 74 * —proximate cause. In order to recover for the death of an employe in a mine alleged to have been caused by the wilful failure of defendant to comply with the Miners’ Act, the plaintiff must prove by a preponderance of the evidence that such failure was the proximate cause of the accident.

2. Mines and minerals, § 185 * —when error to refuse to direct verdict for defendant in action for death of a switchman. In an action to recover for the death of plaintiff’s intestate while deceased *200was employed as a trapper and a switchman in defendant’s mine, the declaration alleging that death resulted from large quantities of gob on either side of the track, where deceased met with the accident, which created a dangerous condition and that defendant was guilty of negligence in failing to have said dangerous condition examined and marked, as the statute requires, held that court’s refusal to exclude all of plaintiff’s evidence and to direct a verdict for defendant was error, there being no evidence to prove that the place was made dangerous by the accumulation of gob or that the absence of gob at such place would have prevented the accident, nor any evidence in the record to show that deceased could not have secured his safety by stepping off the track.

*199Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding.

Heard in this court at the April term, 1913.

Reversed with finding of fact.

Opinion filed October 16, 1913.

Statement of the Case.

Action by Kate Brown Wyzard, administratrix of the estate of George Brown, deceased, against Vivian Collieries Company to recover for the death of deceased by being run over by a motor car and a train of coal cars while he was working in defendant’s mine as a trapper and switchman. From a judgment in favor of plaintiff for two thousand five hundred dollars, defendant appeals.

C. C. Terry and Rinaker & Rinaker, for appellant.

Jesse Peebles and Hill & Burlington, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

Mr. Justice Creighton

delivered the opinion of the court.