danger to the animal was . . . remote and not apparently probable.. Where negligence does not admit of doubt or debate, it is matter of law for the Court. Where negligence is a question for doubt or debate, it is matter of fact for the jury. . . . The question is generally a mixed one of law and fact. There may or there may not be a question of fact for the jury. Each case must be determined by its own circumstances. Courts cannot establish a general rule, determining what is or is not negligence under all circumstances. And when circumstances leave it in reasonable doubt, Courts cannot take the question from the jury. In such a case as this, a jury is a far better judge of the question than a Court. The question was plainly for the jury, and was properly and fairly submitted to it. And the verdict is conclusive of the fact.

By the Court.

The judgment of the Court below is affirmed.

655. CARTERVILLE COAL COMPANY v. ABBOTT

SUPREME COURT OF ILLINOIS. 1899

181 Ill. 495, 55 N. E. 131

APPEAL from the Appellate Court for the Fourth District; - heard in that court on appeal from the Circuit Court of Williamson county; the Hon. A. K. VICKERS, Judge, presiding.

...

Plaintiff received the injury sued for in this case on May 13, 1897, at which time he was in the employ of the defendant, a coal mining corporation, as a blacksmith, and while descending the air or escapement shaft by means of a ladder, fell from the last platform to the bottom, a distance of about eleven feet. The two counts of the declaration charge the defendant, in effect, with a wilful failure to construct or maintain an escapement shaft in the manner provided for by section 3 of chapter 93 of the statutes of Illinois. . . . The theory of appellant's defence on the trial of this case was, that the plaintiff was not in the exercise of due care and caution for his own safety at the time of the accident. This was alleged in the declaration, and the plea of the general issue traversed that allegation. Witnesses for the defendant testified that the plaintiff admitted, shortly after the accident, that it was partially his own fault, — that "it was my own foolishness.” . . . Among the instructions given for the plaintiff to which defendant excepted were the following: 7. "That if plaintiff did say he fell and was injured as a result partly of his own neglect, yet if the jury believe, from a preponderance of the evidence, that the plaintiff's injury was occasioned by reason of the wilful failure of defendant to partition off the stairway from the main air-way of the escapement shaft and provide substantial hand-rails and platforms for the same, and that such injury would not have occurred but for such wilful failure, then the verdict should be for the plaintiff." All the instructions asked by the defendant were refused, to which it excepted. They were as follows:

6. "The jury are further instructed that before a person can recover on account of negligence in the performance of a statutory duty on the part of another, it must appear, not only that the injury complained of was the result of such negligence, but it must also appear that the injured party was at the time in the exercise of due care."

Clemens & Warden, for appellant.

Duncan & Rhea, for appellee.

Mr. Justice PHILLIPS delivered the opinion of the Court. . . It was said in the case of Calumet Iron and Steel Co. v. Martin, 115 Ill. 358: "From the earliest reported case in our Reports where the question was passed upon, to the present time, a period of more than thirty years, the general rule has been declared and recognized in opinions announced from time to time, that in order to recover for injuries from negligence it must be alleged and proved that the party injured was, at the time he was injured, observing due or ordinary care for his personal safety," and many cases are cited of the decisions of this Court prior to that adjudication sustaining that rule. Since that opinion was announced, numerous cases have been decided in which the same rule has been sustained.

To this rule, however, there is a distinct and positive exception, grow ing out of the provisions of section 29 of article 4 of the Constitution of this State, which follows: "It shall be the duty of the General Assembly to pass such laws as may be necessary for the protection of operative miners, by providing for ventilation when the same may be required, and the construction of escapement shafts, or such other appliances as may secure safety in all coal mines, and to provide for the enforcement of said laws by such penalties and punishments as may be deemed proper." The legislation of this State, enacted for the purpose of complying with the above provision of the Constitution, provides for certain duties to be performed by the mine owner or operator with reference to the construction of an escapement shaft, ventilation, boreholes, and for operating hoist-ways and the like, designed for the protection and safety of miners. By section 3 of "An Act providing for the health and safety of persons employed in coal mines," in force July 1, 1879, it is provided that when more than six men are employed, escapement shafts are required to be constructed, and "such escapement shafts as shall be equipped after the passage of this act shall be supplied with stairways, partitioned off from the main air-way, and having substantial hand-rails and platforms, and such stairways shall be at an angle of not greater than forty-five degrees." Section 14 of that Act, as amended and in force July 1, 1887, is as follows: "For any injury to person or property occasioned by any wilful violations of this act or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure, as aforesaid, a right of action shall accrue to

the widow of the person so killed, his lineal heirs or adopted children, or to any other person or persons who were before such loss of life dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives, not to exceed the sum of $5,000."

By this latter section, for an injury to person or property, or for loss of life, occasioned by a wilful violation of any of the provisions of the Act providing for the health and safety of persons employed in coal mines, the operator is made liable in damages. An enactment such as this, which is in force by the mandatory requirement of the Constitution, is of the gravest import and of the highest character. . . . Where an owner, operator or manager so constructs or equips his mine that he knowingly operates it without conforming to the provisions of this Act, he wilfully disregards its provisions and wilfully disregards the safety of miners employed therein. . . . Mere contributory negligence on the part of a miner will not defeat a right of recovery where he is injured by the [mine owner's] wilful disregard of the statute, either by an act of omission or commission, on the part of the owner, operator or manager. To hold that the same principle as to contributory negligence should be applied in case of one who is injured in a mine because the owner, operator or manager totally disregarded the statute, as in other cases of negligence, is to totally disregard the provisions of the Constitution, which are mandatory in requiring the enactment of this character of legislation, and would destroy the effect of the statute and in no manner regard the duty of protecting the life and safety of miners. A wilful disregard by the employer of a duty imposed is a wilful exposure to liability to injury of the employee, and is an act of negligence of so gross a character and so utterly in disregard of law that the question of contributory negligence, merely, has no place in the case as relieving such owner, operator or manager from liability for an injury which has resulted solely from the fact of such negligence.

If one is injured as a result of some act of negligence on the part of the mine owner other than failure to comply with specific duties required by the statute, then the person injured must have been in the exercise of ordinary care before he can maintain an action, and must allege and prove that he was in the exercise of such care. The rule is different, however, under this legislation.

It was not error to refuse the instructions asked by the defendant or to give those asked by the plaintiff. . . . It is clear the plaintiff was entitled to recover, and as we find no error in the record the judgment of the Appellate Court of the Fourth District is affirmed.

Judgment affirmed.

656. PUBLIC LAWS OF THE UNITED STATES OF AMERICA. (Sixtieth Congress, 1st session, 1908, c. 149; 35 Stat. at Large, p. 65.) Sec. 4. In any action brought against any common carrier under or by virtue of any of the provisions of this Act to recover damages for injuries to, or the death of, any of its employees,

such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.1

SUB-TOPIC C. DEFENDANT'S ACT INTENTIONAL

657. BROWNELL v. FLAGLER.

SUPREME COURT of New YORK. 1843

5 Hill 282

ERROR to the Dutchess C. P. Brownell sued Flagler before a justice of peace in an action on the case to recover the value of a cossett-lamb. The lamb ran with the plaintiff's cow, and both were pastured in the field of one De Langs. The cow and lamb got into the highway on the 5th or 6th of November, 1841, and on that day the defendant, who lived within a mile, passed with a flock of about twenty lambs which he had sold to a drover by the name of Pine. The plaintiff's lamb mingled with the flock, and the defendant drove them all on together, knowing that the strange lamb was in the flock, and left them in the yard of one Shearman for the drover, who came the next morning and took them

1 [PROBLEMS:

A statute makes a railroad company liable for all fires set by its engines (as in No. 521, ante, Book II). Is the plaintiff's contributory negligence open as a defence under this statute? (1899, Boston Excelsior Co. v. R. Co., 93 Me. 52, 44 Atl. 138.)

The plaintiff saw the defendant's dog barking at a hole in the wall, and went to drive it away. The dog bit him. A statute provided that "every owner or keeper of a dog shall forfeit to every person injured by it double the amount of the damage sustained." Is the plaintiff's contributory negligence a defence, under this statute? (1885, Quimby v. Woodbury, 63 N. H. 370.)

The defendant railroad was made liable by statute for all damage done by a failure to provide its track with a fence suitable to keep out all animals. The plaintiff, a child, negligently strayed on the track, for lack of a fence, and was injured. Is the defendant liable? (1908, Bischoff v. Illinois S. R. Co., 232 III. 446, 83 N. E. 948.)

The defendant railroad was obliged by law to maintain a fence enclosing its right of way, and the statute made the railroad liable for double damages for any stock killed on the track for lack of such a fence. The defendant had not built any fence. The plaintiff, who knew this, put his cattle to pasture on his adjoining land, and they went on the track and were killed. May he recover? (1886, Donovan v. R. Co., 89 Mo. 147.)

The plaintiff, an elevator-boy under sixteen, was injured by the faulty construction of the defendant's elevator; the defendant being the plaintiff's employer. A statute penalized the employment of minors under sixteen to run elevators. Is the defendant liable? (1910, Moran v. Dickinson, 204 Mass. 559, 90 N. E. 1150.)

NOTES:

"Statutory prohibition of Child-labor." (A. L. Reg., LIX, 412.)

"Contributory negligence: Nature of the defence: cases in which it applies." (H. L. R., XVII, 428.)]

all away to market. The defendant knew that he left the strange lamb in the yard among the rest; but he received nothing for it from Pine, having been paid for his own lambs before he drove them to Shearman's, where Pine was to come for them. The jury found a verdict for the plaintiff, and the justice rendered judgment in his favor. The defendant removed the cause to the C. P. by. certiorari, where the judgment was reversed, on the ground that the plaintiff was chargeable with negligence for allowing his lamb to be in the highway. The plaintiff brought error. S. Barculo, for the plaintiff in error.

0. T. Coffin, for the defendant in error.

By the Court, BRONSON, J. In an action on the case, where the injury of which the plaintiff complains has resulted from the negligence of both parties, without any intentional wrong on the part of the defendant, the action cannot be maintained. . . . There may have been some slight degree of negligence on the part of the plaintiff in allowing his cow and lamb to escape into the highway; and if the lamb had been killed by a passing carriage, without any intentional fault in the driver, the plaintiff would have had to bear the loss. But the plaintiff is not suing for negligence. He complains of a voluntary injury. The defendant knowingly drove away the lamb, and left it in the yard with his own flock to be taken by the drover. If he could not separate this lamb from the rest when it came into the flock, he could easily have done so when he got to Shearman's; and the jury have found, as they well might, that he was in fault for not doing it.

It is of no consequence that the defendant has not been a gainer by the wrong. It is enough that he has done an injury to the plaintiff. The judgment of the C. P. must be reversed, and that of the justice affirmed. Ordered accordingly.

658. RUTER v. FOY

SUPREME COURT OF IOWA. 1877.

46 Iowa 132

THE plaintiff avers in her petition that the defendant assaulted and beat her with a pitchfork, whereby she sustained great injuries. Trial by jury. Verdict for plaintiff for $200. Defendant appeals.

Scales and Cassidy, for appellant.

W. V. Allen, for appellee.

ADAMS, J. 1. . . . The defendant asked an instruction, which is in the following words: "If you find from the evidence that plaintiff was injured, or contributed to her injury, by her own act or negligence, defendant would not be liable for assault and battery upon her, and plaintiff cannot recover." The Court refused to give the instruction, and the refusal is assigned as error.

The doctrine of contributory negligence has no application in an