RECOVERY FOR INJURIES.

A shot firer employed in a strip-pit coal mine and using dynamite in the preparation of a blast in violation of the statute of Kansas can not recover damages for injuries sustained by him in the explosion of dynamite with which he was working where it was necessary for him to prove its illegality as a part of his cause.

Richards v. Fleming Coal Co.,

Kans.

179 Pacific 380, p. 382.

COMPENSATION PERIOD-INSTANTANEOUS DEATH.

Under the Workmen's Compensation Act of Pennsylvania (act of June 2, 1915, arts. 3 and 4), where an accident resulted in the instantaneous death of a miner, the period of compensation did not begin to run until 14 days after his death.

Rakie v. Jefferson & Clearfield Coal & Iron Co., p. 639.

Pa.

105 Atlantic 638,

CONTINUOUS EMPLOYMENT-AVERAGE EARNINGS.

Average daily earnings may be determined by adding together the actual earnings received during the period and after making the deductions required by the act, the remainder to be divided by the number of days in the period, less Sundays, legal holidays, and half holidays, and days the employee was prevented from working by sickness or through no fault of his own, in order to find the average wage for a working day.

Jensen v. Atlantic Refining Co., Pa. Rakie v. Jefferson & Clearfield Coal & Iron Co., p. 639.

105 Atlantic 545, p. 546.

Pa.

105 Atlantic 638,

WORKING DAY-DEFINED BY COMPENSATION BOARD.

The Workmen's Compensation Act of Pennsylvania did not define a "working day." The compensation board under the authority conferred upon it provided that "working days" shall mean the total number of days in a period of employment covered according to the calendar, less: (a) Sundays, (b) legal holidays, (c) half holidays each week, (d) days the employee was prevented from working through no fault of his own. The number of days that an employee was sick within the employment period may be deducted as included within the phrase "through no fault of his own."

WORKING DAY-MINE CLOSED BY LABOR DISPUTE.

In determining the number of working days of a miner for the purpose of computing his average earnings, the number of days that the mine was closed, due to a labor dispute, must be deducted from the

entire number of calendar days, as the miner's idleness during these days was not due to any fault of his own.

Rakie v. Jefferson & Clearfield Coal & Iron Co., p. 639.

Pa.

105 Atlantic 638,

ALLOWANCE FOR HOSPITAL CHARGES- -MAXIMUM AMOUNT.

The Workmen's Compensation Act of Illinois provides that compensation for an injury not resulting in death shall include a sum not exceeding $200 for medical, surgical, and hospital services, but for a period not longer than eight weeks. A payment of a greater amount and for a longer time must be regarded as having been made gratuitously or in the expectation of saving the life of the employee and reducing the total compensation for which the employer would eventually be liable, but otherwise the amount can not be allowed as a deduction in the absence of an agreement.

Crescent Coal Co. v. Industrial Commission,

Ill.

121 Northeastern 171.

DISTRIBUTION OF AWARD AUTHORITY TO MAKE.

The Workmen's Compensation Act of Illinois provides that in case of voluntary payment by the employer the compensation may be paid either to the personal representative of the deceased or to his beneficiaries, and distributions by the personal representative, if paid to him, shall be on the order of the court appointing him. This statute applies only in cases where the employer voluntarily pays the compensation to the personal representative, but if there is a hearing and compensation is fixed by the Industrial Commission it must determine who is entitled to the compensation before it can determine the amount, and in such case the probate court has no jurisdiction to determine who is entitled to an award made by the Industrial Commission.

Smith-Lohr Coal Min. Co. v. Industrial Commission, eastern 231, p. 234.

Ill.

POWER OF COURT TO REVIEW EVIDENCE.

121 North

Where the Industrial Commission has made an award for the death of a miner under the Illinois Workmen's Compensation Act (Hurds Revised Stats. 1917, chap. 48), a court in reviewing the evidence is not authorized to pass upon its weight, but can go no further than to see if there is any evidence tending to show that the death arose out of and in the course of the deceased miner's employment. Smith-Lohr Coal Min. Co. v. Industrial Commission, eastern 231, p. 232.

Ill.

121 North

See Big Muddy Coal Co. v. Industrial Commission, 279 Ill. 235, 116 Northeastern 662.

MINES AND MINING OPERATIONS.

ACTIONS PLEADING AND PROOF OF NEGLIGENCE.

PROOF INSUFFICIENT- -COURT DIRECTING VERDICT.

In an action by a miner for damages for injuries received in the mining operations due to the alleged negligence of the mine operator the court may direct a verdict for the defendant where the evidence of negligence on which recovery was sought was so indefinite and uncertain as not to warrant a verdict thereon.

Barna v. Gleason Coal & Coke Co., - W. Va., 98 Southeastern 158, p. 161.

AVERMENT OF FACTS SHOWING DUTY.

It is not sufficient in an action by a miner against a mine operator for damages for injuries to allege that it was the duty of the mine operator to do certain things, but the pleading must allege facts from which the law will raise the duty on the part of the mine operator. New Staunton Coal Co. v. Fromm,

Ill.

121 Northeastern 594, p. 595.

GENERAL ALLEGATIONS OF NEGLIGENCE-NATURAL CAUSES.

In an action for the death of a miner the negligence of the operator as alleged consisted in laying the mine tracks so close together that loaded cars would not pass empty cars on a sidetrack without interference, and that the miner was killed by reason of a loaded car striking an empty car and driving it against him. The specific thing which caused the cars to interfere was not alleged and was probably not known to the complainant; but it was not the essential thing so long as the cause was natural, usual, and ordinary and which could and should have been obviated in laying the tracks.

Johnson v. Silver King Consol. Min. Co., Utah

179 Pacific 61,

p. 65.

ALLEGATIONS OF NEGLIGENCE-PROBABLE ACTS INCLUDED.

In an action for damages for the death of a miner the complaint averred negligence on the part of the mine operator in laying and maintaining the tracks in a tunnel so close together that loaded cars on the main track would not pass empty cars on the sidetrack without coming in collision. It also averred that the miner was killed as a result of such negligence by reason of a loaded car striking an empty car and driving it against the miner. This allegation of negligence

was sufficiently broad to include any collision that might result either from the fact that the tracks were so close together that the cars would without other cause collide, or that they might collide by the tilting of the track or by a rock falling on the track and causing a car to tilt, or by the moving of the main track under the weight of the loaded cars, or by the speading of the rails, and if any one or all of these causes were as likely to have caused the cars to interfere in passing as that the interference was caused by the tracks being laid too close together to permit cars to pass without interference, then the allegation of negligence included all these. In laying the tracks ordinary prudence required that the things enumerated be kept in mind, as these things were liable to occur at any time.

Johnson v. Silver King Consol. Min. Co.,

Utah

179 Pacific 61, p. 64.

PLEADING AND PROOF-VARIANCE-PROOF INSUFFICIENT.

A complaint in a miner's action for damages for injuries alleged that the defendant operator was negligent in failing to clean up a fall and in negligently failing to furnish a helper to assist the plaintiff to clean up and remove a fall and by reason of which the plaintiff was injured, and that the defendant operator was negligent in failing to remove the débris or obstruction caused by the fall of earth or coal in his mine chamber. The plaintiff's own evidence on the trial of the case showed that the débris and obstruction was entirely removed before the plaintiff received the injury of which he complained, and that at the time he was injured his room was in a normal condition, and at that time he had the right to perform his work as he pleased, and at the time of the injury he was mining under the coal with a pick and the removal of the dirt from under it caused the coal to come down, resulting in the injury complained of. The allegations of negligence were not supported by the proof, and the failure to remove the débris or fall was not the proximate cause of the injury. Haney v. Texas & Pacific Coal Co., - Tex. Civ. App. 207 Southwestern 375,

p. 381.

AMENDMENT OF PLEADING

STATUTE OF LIMITATIONS.

Where an original declaration or complaint for damages for injuries to a miner caused by the alleged negligence of the mine operator states a cause of action, though imperfectly and defectively, subsequent amendments filed after the statute of limitations has run will not be barred by the statute if the amendments amount to no more than a restatement in a different or better form of the cause of action originally declared upon.

New Staunton Coal Co. v. Fromm, Ill.

121 Northeastern 594, p. 596.

AMENDMENT OF PLEADING-STATUTE OF LIMITATIONS.

A complaint in a common-law action by a miner for damages on the ground of the alleged negligence of the operator for injuries contained no allegation that the defendant had elected to operate under the Workmen's Compensation Act of Illinois. The act provides that mine operators shall be conclusively presumed to be subject to the act unless the contrary is made to appear. After a demurrer was sustained to the complaint and after more than two years from the date of the accident the complainant amended his complaint by inserting an allegation to the effect that the defendant mine operator had elected not to accept the provisions of the Workmen's Compensation Act. This amendment changed the nature of the action and made it subject to the two-year statute of limitations.

In an action by a miner against a mine operator for damages for injuries on the ground of negligence it is necessary to allege and prove: (1) The existence of a duty on the part of the mine operator to protect the miner from the injury of which he complains, (2) the failure of the mine operator to perform that duty, and (3) an injury to the miner resulting from such failure.

A motor helper on an underground ore train was injured while standing on the running board in the performance of his duties. He alleged negligence in operating the locomotive without a headlight and with a defective running board, and in traveling at a dangerous rate of speed, and in piling timbers so near the track that insufficient space was left for the locomotive to pass. The jury was warranted in finding that the place where the accident occurred was not a reasonably safe one, or that the mine operator was negligent in failing to furnish an adequate running board or an adequate headlight on the motor, or that its train was moving at an excessive rate of speed at the time of the accident, and that the situation of timber in close proximity to the track was an extraordinary risk unknown to the employee and a danger concealed from him and one that could have been known to the operator by the use of ordinary care. Inspiration Consol. Copper Co. v. Lindley, Ariz.

EVIDENCE EQUALLY BALANCED.

177 Pacific 24, p. 26.

In an action by a miner for damages for injuries caused by the alleged negligence of the mine operator it is not improper to leave

125590°-19-Bull. 181-8