Litchfield Coal Co. v. Taylor

Citations

• 81 Ill. 590

Syllabus

<p>L Tarty at law—widow to recover under miners’ act. An action to re- • cover damages for the death of a miner, caused by neglect to observe the provisions of the statute relating to miners, is properly brought by the widow of the deceased. The action is given to the widow and not to the personal representative.</p> <p>2. Statute—construed as to repealing special law. The statute of 1874 entitled “Injuries” does not repeal the 14th section of the act relating to miners. The former act is general, while the latter is special and must control as to all cases specially enumerated therein, and the first, being general, will embrace all other cases.</p> <p>3. Amendment—as to parties plaintiff. Under the Practice Act the court has ample power to allow amendments to be made as to the character in which the plaintiff sues, and this is no ground for a continuance unless the defendant shows by affidavit that lie is surprised.</p> <p>4. Pleading and evidence—variance. Where a declaration alleged that the defendant was hoisting coal out of a shaft in its mine at the time the deceased was ascending, and he was killed in consequence of that illegal act, and the proof showed that he had just got upon the cage to be raised when he was killed by the fall of coal, it was held, there was no material variance, as the danger was as great as if the cage was in fact ascending at the time.</p> <p>5. Where a count averred that the defendant used in its mine uncovered cages to hoist out and lower into the mine persons employed to work therein, and that deceased had gone upon an uncovered cage to be hoisted out of the mine, and while upon it was struck by a lump of coal falling- down the shaft, and killed by reason of there being no such cover on the cage, and the proof showed that immediately after the accident he was found lying on his back off the cage, with his feet about six inches from it, it was held, there was not necessarily a variance, and that even if he was killed while in the ac