delivered the opinion of the court:
It was said in the case of Calumet Iron and Steel Co. v. Martin, 115 Ill. 358: “Prom 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, growing out of the provisions of section 29 of article 4 of the constitution of this State, which is as 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, bore-holes, 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 willful violations of this act or willful 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 willful violation or willful 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 §5000.”
By this latter section, for an injury to person or property, or for loss of life, occasioned by a willful 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, and must necessarily be construed in connection with the constitutional provision requiring the enactment. Where so large a number of persons are engaged in a productive industry as in coal mining in the State of Illinois, and where the work is of such a character that it is recognized as being attended with unusual hazards and dangers, the constitution requires that legislation shall be had for the purpose of protecting those thus engaged from the known extraordinary hazards and. dangers. In the construction and equipment of mines, therefore, the act requires the discharge of specific duties, so that the utmost safety can be extended to the miners. This requirement of the constitution is sought to be met by this legislation, which directs the owner, operator or manager to make provision for the'safety of the miners employed within the mine.
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 willfully disregards its provisions and willfully disregards the safety of miners employed therein. Where such owner, operator or manager willfully disregards a duty enjoined on him by legislation of this character, and places in danger the life and limbs of those employed therein, he cannot say that because one enters a mine as a miner with knowledge that the owner has failed to comply with his duty, he is guilty of contributory negligence. Neither can it be said that by using the means provided by the owner, operator or manager for entering the shaft the miner is guilty of contributory negligence. Mere contributory negligence on the part of a miner will not defeat a right of recovery where he is injured by the willful 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 willful disregard by the employer of a duty imposed is a willful 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. Under the evidence in this record it appears the escapement shaft was not partitioned off from the main air-way, nor was the stairway provided with substantial hand-rails, nor was the platform protected by railing. This escapement shaft is shown to have been used by employees in entering into and passing from the mine. The duties of the blacksmith required him to enter the mine at various hours for the purpose of discharging the various duties incumbent on him, and he was in the habit of using, for the purpose of entering or departing from the mine, the stairway provided by the defendant company. The evidence shows that had the stairway and platforms been protected by hand-rails it is utterly improbable that the injury could have resulted in the manner it did. The neglect of the defendant to discharge its duty in providing hand-rails was the cause from which the injury resulted, and it is not to be excused by any mere contributory negligence on the part of the plaintiff.
If one is injured as a result of some act of negligence on the part of the mine owner other than failure to com- ■ ply 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, where there is a willful failure to comply with the provisions of the statute, and the right of recovery cannot depend, in such case, on the exercise of ordinary care by the person injured, nor can he be precluded by mere contributory negligence. This legislation fixes a broad and distinct exception from the general rule.
It was not error to refuse the instructions asked by the' defendant or to give those asked by the plaintiff.
The principles here announced are sustained by Bartlett Coal and Mining Co. v. Roach, 68 Ill. 174, Litchfield Coal Co. v. Taylor, 81 id. 590, and Catlett v. Young, 143 id. 74.
Even though the declaration avers the plaintiff was in the exercise of due care and caution, yet where the evidence discloses the fact that the injury resulted from the willful violation of the statutory duties prescribed for the protection of miners, and that fact was averred in the declaration, the simple averment of due and ordinary care does not entail the additional duty of proving the same, and is surplusage.
It is clear the plaintiff was entitled to recover, and as we find no error in the record the judgment of the Appellate Court for the Fourth District is affirmed.
Judgment affirmed.