#### Henry Marriage, Appellee, v. Electric Coal Company, Appellant.

(Not to be reported in full.)

Appeal from the Circuit Court of Vermilion county; the Hon. B. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1913.

Affirmed.

Opinion filed May 5, 1914.

Rehearing denied June 25, 1914.

Certiorari denied by Supreme Court (making opinion final).

*143Statement of the Case.

Action by Henry Marriage against Electric Coal Company, a corporation, to recdver for personal injuries received by plaintiff while working in defendant’s mines. A verdict was rendered finding defendant guilty and assessing plaintiff’s damages at $3,545. To reverse a judgment entered on the verdict, defendant appeals.

The declaration consists of four counts. The first, third and fourth charge defendant with common-law negligence. The second count is predicated upon the wilful violation of section 21, paragraph “a” of the Mines and Miners’ Act of 1907 (corresponding section of Act of 1911, J. & A. 7489), which was in force at the time of the injury. The second count, in substance, charges that on February 4, 1911, the defendant was operating the coal mine in question and plaintiff was in the employ of defendant as a coal digger; that in the performance of his duties it was necessary for him in going to and from his work tó pass through the second southeast main entry in said mine, which was used as a single track haulage road on which the trains of pit cars were moved by machinery; that plaintiff and others traveled on foot to and from their work through said entry; that defendant wilfully failed to cut in the said walls of said haulage road places of refuge not less than three feet in depth, four feet wide and five feet high and not more than twenty yards apart, or to provide a clear place of at least three feet between the sides of the cars traveling on said haulage road and the side of the road; that while traveling on foot to his work in said entry a train of cars, or trip, struck him by reason of defendant’s wilful failure to comply with the statute and plaintiff was unable to escape from said cars or trip and was crushed between the same and the side of the entry and had his hip broken and was otherwise permanently injured. The defendant filed the plea of general issue to all the counts.

*144Abstract of the Decision.

1. Appeal and ebbob, § 1526 * —when giving of erroneous instruction harmless error. The giving of an erroneous instruction in relation to one count in the declaration, held harmless where the verdict may be sustained under a different count.

2. Appeal and ebbob, § 1734*—when errors not assigned on first appeal cannot be urged on second appeal. Alleged errors in instructions cannot be urged where the same instructions were given but were not assigned for error on a prior appeal.

3. Mines and minebals, § 106*—when rule of mine abandoned. Evidence held to show that a posted rule of the mining company prohibiting employees to travel on a haulage road of the mine had abandoned and was not in force at the time of an injury to an employee, where it was the habit of the employees to walk to and from work through the haulage way and the company itself had abandoned the rule.

4. Mines and minebals, § 181*—when question whether violation of Miners Act was proximate cause of injury is for jury. In an action by a miner to recover for personal injuries alleged to have resulted from a wilful failure of defendant to provide places of refuge in compliance with paragraph “a” of section 21 of the *145Mines and Miners’ Act of 1907 (corresponding section of Act of 1911, J. & A. If 7489), heló under the facts of the case that the question whether the violation of the statute was the proximate cause of the injury was a question for the jury.

*144It is conceded that at the time of the accident no places of refuge were constructed and maintained in this haulage way as required by section 21 of the statute, and that there was not a clear space of three feet wide on either side of the entry between the sides of the cars and the entry, but it is contended that the failure to provide said place of refuge was not the proximate cause of the injury.

Charles Troup, for appellant; Mastin & Sherlock, of counsel.

Thomas A. Graham, for appellee; Charles W. Fleming, of counsel.

*

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

Mr. Justice Eldredge

delivered the opinion of the court.