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included damages for the pain and suffering that he endured and for his diminished and lost earning capacity for the period of his natural expectancy. No reason exists why the scope of the action should diminish because of his death; to inject such a change into the statute would do violence to its language, and would, pro tanto at least, destroy its very purpose.
EMPLOYERS' LIABILITY—MINE REGULATIONS-SHOT FIRERS-ConSTRUCTION OF STATUTE---Hougland et al. v. Avery Coal & Mining Company, Supreme Court of Minois, 93 Northeastern Reporter, page 40.—Blanche Hougland and others had sued the company named to recover damages for the death of William Stevenson and William Hougland as the result of an explosion in a mine operated by the company. Judgment was granted in favor of the plaintiffs, and the company appealed, alleging various grounds for reversal, none of which was allowed, and the judgment was affirmed. Various points were raised by the company, of which but one is of sufficient general importance to call for consideration here. This was the contention that a shot firer is not protected by the laws of Illinois (Acts of 1905, p. 328, as amended by Acts of 1907, p. 401; Twenty-second Annual Report of the Commissioner of Labor, 1907, pp. 370, 371). On this point Judge Farmer, speaking for the court, said:
The principal ground upon which plaintiff in error asks a reversal of these judgments is that a shot firer does not come within the protection of the general act concerning mines and miners. The shot firers' act was originally passed in 1905 (Laws 1905, p. 328), and was amended by the addition of three sections in 1907 (Laws 1907, p. 401). The amendments, however, do not affect the decision of the question raised by the plaintiff in error. The reason given by plaintiff in error for its contention that shot firers are not within the protection of the general act concerning mines and miners is that the shot firers' act is a separate and independent legislative enactment in nowise amendatory of the general act; also, that shot firers are experts to whom the entire mine is turned over when they commence the discharge of their duties, and no inspection is required or can be made after the miners quit work and before the shot firers enter upon the discharge of their duties. In Davis v. Illinois Collieries Co., 232 Ill. 284, 83 N. E. 836, a shot firer was held to be within the protection of the general act concerning mines and miners. This case was cited with approval in Brennen v. Chicago & Carterville Coal Co., 241 Ill. 610, 89 N. E. 756, where it was said the provisions of the general act "are for the safety and protection of all who are employed in the mine, including engineers, firemen, pump men, shot firers, drivers, and other workmen and employees."
Plaintiff in error insists that since those cases were decided this court has held in Hollingsworth v. Chicago & Carterville Coal Co., 243 Ill. 98, 90 N. E. 276, that the shot firers' act is an independent act, and not an amendment to the general mining act, and that the decisions in those cases are therefore no authority. We can not agree to this position. In the Hollingsworth case the coal company did not employ shot firers, and the shot fired by one of the miners caused an explosion, resulting in the death of another miner. The widow of the deceased brought an action against the coal company, and alleged as a ground of recovery that the mine was of such condition and character that the law required shot firers to be employed therein, and that the coal company willfully failed to employ shot firers, by reason whereof her husband was killed. We held the shot firers' act being no part of the general mines and miners' act but being an independent act, and containing no provision authorizing a widow to sue for damages for failure to comply with its provisions, as is the case with the general act, the suit could not be maintained. There is no intimation in the opinion in that case that shot firers are not within the protection of the general act, and that decision is in nowise inconsistent with the previous decisions of this court holding that they are within the protection of said act.
Complaint is made of the ruling of the trial court in permitting witnesses experienced in the business of mining and shot firing to testify, over the objection of plaintiff in error, that the shot in the second west entry was a workmanlike and practical shot. One of these witnesses prepared the shot, another saw it before it was fired, and the others made their examinations afterwards. Some of them testified it split the coal so that it was easily mined afterwards, but did not knock it down, as is usually the case. Some of them called it a “standing shot.”. All testified that it was prepared in a workmanlike and practical manner. It is conceded by the plaintiff in error that the subject was one for expert testimony, and no complaint is made that the witnesses did not possess the proper qualifications. The contention is that they should not have expressed any opinions, but that they should have described the shot and left it to the jury to determine whether it was a workmanlike and practical shot. Without stopping to inquire whether the latitude allowed by the court is too broad, it is sufficient to say that whether it was or not could have no controlling force on our decision. If the explosion occurred from the willful failure of plaintiff in error to provide proper air currents and keep the roadways cleaned and sprinkled, as charged in the declaration, contributory negligence of the deceased in firing a shot prepared in an unskillful manner would not defeat a recovery. (Davis v. Illinois Collieries Co., supra.)
EMPLOYERS' LIABILITY—NOTICE-SUPERINTENDENCE-CONSTRUCTION OF STATUTE-Smith v. Milliken Brothers, Court of Appeals of New York, 93 Northeastern Reporter, page 184.-James Smith sued the company named on account of an injury received by him while in their employment. Smith was engaged in adjusting some heavy machinery in the plant of his employers and was standing on a cogwheel not at that time in motion. While he was in this position one, C. E. Smith, who was in immediate charge of the work being done, directed one Miller, who was the superintendent in general charge of the work, to start the machinery with the result that James Smith suffered injury. Judgment had been rendered in James Smith's
favor in the courts below and on appeal this judgment was affirmed in the court of appeals.
The question was raised as to the sufficiency of the notice served under the liability law of the State (Consolidated Laws, ch. 31). On this point Judge Hiscock, who delivered the opinion, found that no material defect in the notice existed, saying that while it was not a model in form it did state with all necessary completeness the time and place and the nature of the injuries; also that the employer was apprised with reasonable certainty of the real cause of the accident, so that though there were admitted inaccuracies in the notice there was not sufficient lack of definiteness to invalidate it as given.
The point about which the strongest contention was made was that C. E. Smith who gave the order resulting in the injury was not under the act performing the work of a superintendent; but that since Miller, who was his superior, was present, any negligence of C. E. Smith would be nothing more than the act of a fellow servant. On this point Judge Hiscock spoke in part as follows:
There was evidence that Miller, the superintendent, directed respondent (James Smith) to obey the orders of Smith, and that he had been doing so for some time. While Miller had charge of a large number of men, Smith also had charge of a considerable number who were subject to his orders, and some or all of whom were engaged at the time in work upon this machine. He directed the respondent what to do at the time he was injured, and he was occupying a position on the machine where he could observe the work which was being done and give directions in connection therewith, while Miller, who, generally speaking, was his superior, was on this occasion engaged in performing part of the manual labor connected with adjusting the machine, and was not giving any orders.
The mere presence of a superior does not necessarily prevent a subordinate from acting as a superintendent. This is apparent, and the principle was practically involved and settled in Andersen v. Penn. Steel Co., wherein a judgment for the plaintiff was affirmed. N. Y. 606, 91 N. E. 1100.) In that case the intestate was killed through the alleged negligence in superintendence of one Lannon, who was a mere “pusher” or foreman of a gang of men in removing some steelwork in connection with Blackwells Island Bridge, while one Wright was foreman in general charge. The court was asked to charge “that if they find Wright, the foreman, was present at the time of the accident, Lannon can not be treated as superintendent within the meaning of the law.” It declined so to do, and instead charged: “If Wright was present and engaged in superintendence of this particular work upon which the decedent was engaged at the time of the accident, then they can not find that Lannon was there acting as superintendent.” This was excepted to, and, of course, approved by the affirmance of the judgment.
EMPLOYERS' LIABILITY--RAILROAD COMPANIES-STREET RAILWAYS—CONSTRUCTION OF STATUTE--Conover v, Public Service Railway, Supreme Court of New Jersey, 78 Atlantic Reporter, page 187.This was an action brought by James W. Conover against the railway company named to recover damages for injury received by him while in the employment of the corporation named in the operation of a street railway. The declaration was demurred to by the company on the ground that the statute in question (paragraph 3 of section 1 of chapter 83 of the laws of New Jersey of 1909) related to steam railways and not to street railways. This view was taken by the supreme court of the State, which held that the statute creating liability for the injury or death of a person occasioned "by reason of the negligence of any person in the service of the employer who has the charge or control of any signal, switch, locomotive engine or train upon a railroad,” could not under the construction placed upon other legislation of the State be held to apply to street railways. The concluding paragraph of the opinion, which was delivered by Judge Minturn, is as follows:
We can give to the words “locomotive engine" or "train upon a railway,” as employed in this act, the construction contended for by the demurrant, so as to apply it to street railways, only by indulging in a liberality of construction and interpretation radically divergent from the accepted use of the words in popular and colloquial phrase and totally opposed, as has been seen, to the hitherto legislative and judicial acceptation of the terms. The collocation of these terms,
signal, switch, locomotive engine or train upon a railroad” affords some aid in enabling us to determine the legislative intent by according to them, as we must under the familiar canons of construction, their ordinary and common meaning in the absence of a legislative intent to the contrary, and a similar result is reached by the application of the maxim of construction, “Noscitur a sociis.” (Black. Int. Laws, 135; Bacon's Ab. 4, p. 26; Bishop v. Elliott, 11 Exch. 113.) The plain inference from this collocation is that the legislature in enacting the legislation in question had in mind that public policy of differentiation between two distinct systems of railroads which has consistently marked the legislation upon the subject and which has been repeatedly recognized by judicial determination as the declared public policy of the State.
EMPLOYERS' LIABILITY-RAILROADS-FEDERAL STATUTE-JURISDICTION OF STATE AND FEDERAL COURTS--INTERSTATE COMMERCECONSTRUCTION OF STATUTE-Colasurdo v. Central Railroad of New Jersey, United States Circuit Court, Southern District of New York, 180 Federal Reporter, page 832.-Michael Colasurdo was a trackwalker, assisting in the repair of a switch on the above-named railroad on the evening of December 25, 1908, and while so engaged was injured by being struck by one of the four cars that were running down the track without a locomotive. There were three men at the switch, each with a lantern, and Colasurdo had his back to the cars by which he was injured. It was in evidence that the cars carried no light, and while there was a man on the cars who saw the lights of the three workmen, he testified that he thought their attention had been attracted to the cars and that they would move in time to escape injury.
Suit was brought by Colasurdo in a State court, but was removed by the defendant company to a Federal court on grounds of diversity of citizenship of the plaintiff and the employing company. During the trial it was shown that both parties were citizens of New Jersey, whereupon the company sought to have the case remanded to a State court for failure of jurisdiction of the Federal court. Inasmuch as the action was brought under the Federal statute of April 22, 1908 (35 Stat. 65), the court retained the case as involving the construction of a Federal statute, and judgment was given for the plaintiff. The present case was the hearing of a motion for a new trial, which was refused, and judgment was directed on the verdict.
The various points were taken up in order by Judge Hand, speaking for the court, who delivered his opinion July 1, 1910. Having stated the facts as above, Judge Hand said:
The question is squarely raised in this case of the jurisdiction of this court. In so far as it depends upon diverse citizenship, the case must be remanded under act March 3, 1875, c. 137, 18 Stat. 470 (U. S. Comp. St. 1901, p. 507). If, however, the dispute or controversy is one arising under a law of the United States, then this court has jurisdiction, and it makes no difference that the defendant could not have been originally sued in such a controversy outside of its domicile. Such a dispute or controversy is within its jurisdiction if the correct construction of the law, which is laid in the complaint as the basis of the right of action, is necessarily involved in the decision, and it is quite clear in this case that it is necessary to determine the meaning of the phrase "person employed by such carrier in such commerce. Therefore this court has jurisdiction, even though the complaint should be dismissed because the plaintiff was not a person so employed. In short, a decision of the meaning of that act is necessary, and such a necessity gives me jurisdiction, regardless of the result of the case.
Coming then to the merits, I will take up the points raised by the defendant seriatim. First, upon the motion to direct a verdict, I think that the refusal was proper. From the evidence the jury could have found that the plaintiff, who was under the orders of Nighland, and had been standing facing east so that the train came upon him from the rear, while Nighland himself was at work facing either south or west, and the other trackwalker stood apparently between the two. If this was the relative position of the three men, the jury could have found that the plaintiff was relying upon the other trackwalker or Nighland to look west and to observe the trains. If both failed to warn plaintiff of the train coming from that direction, the