accident that the mine was completely and properly erected, constructed and operated. Crooks v. Tazewell, 263 Ill. 343, p. 349. In an action by a miner against a mine operator for damages for injuries caused by an explosion in a mine it is improper to permit a miner to testify that blown out shots were not uncommon occurrences in the mine. Chicago, Virden Coal Co. v. Rucker, 116 Ill. App. 425, p. 426. In an action by a miner for damages for injuries caused by an alleged violation of the statute by the mine operator in that a dangerous condition was not properly marked it is error to permit witnesses to testify that the neck of the room was safe or that it was unsafe. LeGru v. Penwell Coal Co., 149 Ill. App. 555, p. 558. Hart v. Penwell Coal Co., 146 Ill. 155. 82. QUESTIONS OF FACT-INSTANCES. The question of the condition of a mine or an entry at the place where an accident occurred and where a miner was injured is one of fact to be determined by the jury and not by the mine examiner. Olson v. Kelly Coal Co., 236 Ill. 502; Aetitus v. Spring Valley Coal Co., 246 Ill. 32; Aetitus v. Spring Valley Coal Co., 150 Ill. App. 497, p. 503; Piazzi v. Kerens-Donnewald Coal Co., 179 Ill. App. 540, p. 544. Whether or not a place in which a miner was injured was dangerous and whether or not the mine operator wilfully failed to comply with the statute are questions of fact for a jury in an action by the miner for injuries received. Aetitus v. Spring Valley Coal Co., 246 Ill. 232; Smith v. Illinois Collieries Co., 155 Ill. App. 148. Whether or not a miner at the time of an injury complained of was engaged in the work of making a dangerous place safe under the direction of the mine manager or was only employed and directed to clean up an entry or cross cut, are questions of fact to be determined by a jury on the trial of the action. Piazzi v. Kerens-Donnewald Coal Co., 179 Ill. App. 540, p. 544, In an action by a miner for damages for injuries caused by being thrown from a motor due to the alleged defective condition of the track, it is a question of fact for the jury to determine whether the motor was thrown from the track and the complainant injured by reason of the defective condition of. the track, or whether the motor was thrown from the track because of the negligence of a fellow servant in failing to attend the switch. Keller v. Chicago-Wilmington-Vermilion Coal Co., 184 Ill. App. 248, p. 253. The question of the failure of a mine operator to furnish props and to have the roof examined and marked as required by the statute is one of fact to be determined by the jury. Hollow v. Wasson Coal Co., 186 Ill. App. 512, p. 513; Price v. Clover Leaf Coal Min. Co., 188 Ill. App. 27, p. 31; Salerno v. Missouri & Illinois Coal Co., 188 Ill. App. 343, p. 344. See Kennedy v. Chicago & Carterville Coal Co., 188 Ill. App. 355, p. 356. In an action for damages for the death of a miner, an instruction substantially in the language of the statute in regard to the duty of the mine owner to furnish props and of the deceased miner to secure his place for his own safety and in regard to the duties of the mine examiner, and which are applicable to the case as made by the evidence, was correctly given. Arkley v. Niblack, 272 Ill. 356, p. 359. In an action by a miner for damages for injuries caused by a fall from the roof on the ground of the alleged failure of the mine operator to furnish props and timbers the question as to whether the timbers furnished by the operator were of suitable dimensions and size to be used as cross-bars at the place where they were needed, and as to whether the miner and his helper could have set the timber up, because of its size, were questions of fact to be submitted to and determined by the jury. Harmening v. Henrietta Coal Co., 149 Ill. App. 387, p. 389. Whether the willful failure of a mine operator to comply with the provisions of the statute was or was not the proximate cause of the injuries or death of a miner, complained of, is a question of fact for the jury to determine in an action for damages for such injuries or death. Olson v. Kelly Coal Co., 236 Ill. 502; Brunnworth v. Kerens-Donnewald Coal Co., 260 Ill. 202, p. 215; Waschow v. Kelly Coal Co., 151 Ill. App. 41, p. 44; Stanhaus v. Paradise Coal & Coke Co., 169 Ill. App. 75, p. 81. See Kellyville Coal Co. v. Strine, 217 Ill. 516; Athens Min. Co. v. Carnduff, 221 Ill. 354; Cook v. Big Muddy-Carterville Min. Co., 249 Ill. 41; Brunnworth v. Kerens-Donnewald Coal Co., 169 Ill. App. 58. Whether the willful failure of a mine operator to comply with the provisions proximate cause of an injury to the miner is a question of fact for the jury to determine in an action for damages for such injury. Arkley v. Niblack, 272 Ill. 356, p. 362. In an action for damages by a miner for the alleged failure of the mine operator to comply with the statute in preparing refuge places in a hauling road it is a question of fact to be determined by the jury on the trial of the case whether the alleged failure of the operator to make refuge places was the proximate cause of the injury complained of. Loftus v. Illinois Midland Coal Co., 181 Ill. App. 197, p. 201; In an action by a miner for damages for injuries sustained by reason of the alleged willful violation of the statute on the part of the mine operator, it must be made to appear that the violation of the Statute complained of was the proximate cause of the injury, and this is a question of fact for the jury. Haywood v. Dering Coal Co., 145 Ill. App. 506, p. 512; Proximate cause is probable cause and remote is improbable cause; and applying this rule to the size of a space for spragging and the work to be performed and the manner of its performance, the question as to whether the alleged violation of the statute in maintaining a dangerous place in an entry was the proximate cause of an injury complained of was a question of fact for the jury. Eaton v. Marion County Coal Co., 173 Ill. App. 444, p. 448; What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury; but it can arise as a question of law when the undisputed facts are such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn therefrom. Halberg v. Citizen's Coal Min. Co., 149 Ill. App. 412, p. 415; Whether the failure of a mine manager to place a conspicuous mark on the roof alleged to be dangerous and a fall from which caused the injury complained of, was the proximate cause of such injury, is a question of fact to be determned by a jury in the trial of the case. Wilson v. Danville Collieries Coal Co., 264 Ill. 143, p. 146; Smith v. Illinois Collieries Co., 155 Ill. App. 148, p. 151; See Waschow v. Kelly Coal Co., 245 Ill. 516; Piazzi v. Kerens-Donnewald Coal Co., 262 Ill. 30. The question as to whether or not a shot wrongfully or unlawfully fired by a shot firer was the proximate cause of an injury resulting to such shot firer or whether the injury resulted from the operator's violation of the statute, are questions of fact to be determined by the jury in an action for damages for the injuries complained of. Tomasi v. Donk Bros. Coal Co., 257 Ill. 70, p. 73. Mertens v. Southern Coal Co., 235 Ill, 540; Tomasi v. Donk Bros. Coal & Coke Co., 169 Ill. App. 47, p. 50. Whether the death of a miner resulted from a willful failure of the mine owner to comply with the statute requiring inspection and posting of warning signs, and the exclusion of miners from dangerous gaseous places, and whether a miner was rightfully at the place at the time the injury occurred, are questions that are proper to submit to a jury in an action for damages for the death of a miner caused by the alleged negligence of the operator in failing to place warning signs. Romani v. Shoal Creek Coal Co., 271 Ill. 360, p. 367. 83. DAMAGES-SINGLE RECOVERY. All damages recoverable under the statute for the death of a miner must necessarily be recovered in a single action. Willis Coal & Min. Co. v. Grizzell, 100 Ill. App. 480, p. 486; Brennan v. Chicago & Carterville Coal Co., 147 Ill. App. 263, p. 271. An action brought by the father and mother for the death of a son, a coal miner, is for the entire recovery of damages and the right to control the prosecution and disposition of the case and a compromise and settlement by them is a release of the cause of action, and a second suit can not be begun under the general injuries act by the father as administrator to recover damages for the same injuries in favor of the heirs of the deceased miner. The fact that a suit may be brought under the general injuries act or under the mines and miners' act does not affect the question whether the same damages may be recovered twice. McFadden v. St. Paul Coal Co., 263 Ill. 441, p. 443. The statute provides that for an injury occasioned a right of action shall accrue for any direct damages sustained; and the word "direct" does not pertain to the cause of the injury, but to the effect of it. Kellyville Coal Co. v. Strine, 117 Ill. App. 115, p. 124. Illinois Fuel Co. v. Parsons, 38 Ill. App. 182; Missouri & Illinois Coal Co. v. Schwalb, 77 Ill. App. 593. In an action by a father and mother or other lineal heirs for damages for the death of a son, the damages are not limited to the pecuniary loss of the 54915°-19-Bull. 169- -23 plaintiff, but the pecuniary loss to all beneficiaries named in the act is proper in considering the measure of damages. McFadden v. St. Paul Coal Co., 183 Ill. App. 36, p. 40. In order to entitle a miner to recover for mental suffering as an element of damages in an action for personal injuries, there must be a suitable averment of the fact of mental suffering in the declaration; but it is sufficient to aver, after a description of the injuries, that the plaintiff "has suffered and will suffer much pain and anguish on account of said injuries." Tomasi v. Donk Bros. Coal & Coke Co., 169 Ill. App. 47, p. 50. See Tomasi v. Donk Bros. Coal & Coke Co., 257 Ill. App. 70, p. 73. The damages to be recovered in an action by a miner against a mine operator for injuries must be the actual and proximate consequence of the wrongful act complained of. French v. Clover Leaf Coal Min. Co., 190 Ill. App. 400, p. 403. The damages provided in an action under this statute are classed by the legislature with other liabilities for violations of a statute, under the generic terms of penalties; and no conduct of an injured or deceased miner short of willfully seeking the injury or death complained of can bar a recovery where it appears that a coal mine operator's willful conduct brought about the injury or death. Kellyville Coal Co. v. Strine, 117 Ill. App. 115, p. 125. See Donk Bros. Coal & Coke Co. v. Stroff, 200 Ill. 483; Donk Bros. Coal & Coke Co. v. Stroff, 100 Ill. App. 582; Brennan v. Chicago & Carterville Coal Co., 147 Ill. App. 263, p. 271. Section 33 of the act of 1899 authorizes an action for the wrongful death of a person in a mine caused by the willful violation of the statute, by the widow of the deceased, the lineal heirs or adopted children, or any other dependent person. But there can not be one recovery under the mines act and another recovery under the general statute authorizing action for wrongful death where the beneficiaries in the separate actions are the same. McFadden v. St. Paul Coal Co., 183 Ill. App. 36, p. 39. MINING RIGHTS CONVEYANCE. SALE OR LEASE OF MINING RIGHTS. LAWS 1861, P. 146. FEBRUARY 20, 1861. AN ACT to encourage Mining in the State of Illinois. SECTION 1. Be it enacted, etc.: That the owner of any land may reserve, sell and convey, or lease mining rights, or the right to dig for and obtain iron, lead, copper, coal or other minerals from such land; and thereafter the sale for taxes of the land in which any mining right has been so conveyed or leased shall not operate to transfer or in any manner affect such mining right. SEC. 2. Mining rights may be conveyed by deed or transferred by lease, and such deeds and leases may be acknowledged and recorded in the same manner as is now provided by law for the acknowledgment and record of deeds, and with like effect. SEC. 3. This act shall take effect and be in force from and after its passage. SEC. 6. CONVEYANCE OF MINING RIGHT.-Any mining right, or the right to dig for or obtain iron, lead, copper, coal, or other mineral from land, may be conveyed by deed or lease, which may be acknowledged and recorded in the same manner and with like effect as deeds and leases of real estate. SEC. 7. EFFECT OF CONVEYANCE.-When the owner of any land shall convey, by deed or lease, any mining right therein, such conveyance shall be considered as so separating such right from the land that the same shall be taxable separately, and any sale of the land for any tax or assessment shall not include or affect such mining right. ANNOTATIONS. 1. MINING RIGHTS CONVEYANCE OR LEASE. 2. MINING RIGHTS-TAXATION. 1. MINING RIGHTS CONVEYANCE OR LEASE. A mining right may properly be deemed a right to excavate in the earth for the purpose of obtaining minerals or other useful products. People v. Bell, 237 Ill. 332, p. 337. The statute provides that "any mining right" may be conveyed by lease, and also provides that when such mining right has been conveyed it shall be considered as so separated from the land that it is taxable separately. People v. Bell, 237 Ill. 332, p. 336. Under the act of 1861 a conveyance by the owner of land, by deed or lease of any mining right in such land, is a separation of such mining right from the land and the mining right shall be taxed separately. |