ing the record and comparing it with the law on Willis V. Elliott, is untrue, false, and is at once apprised of the illegality." 2 Cool- fraudulent." 2 Cool- fraudulent." ey on Taxation (3d Ed.) 1448. The foreclosure! It is not argued that these allegations proceedings being invalid on their face so far | charge fraud, but it is contended that they as they attempt to affect the rights of Emma are preceded by the statement, "Your oraJ. Glos, the decree in question is no cloud trix alleges that in said record and proceedon her title and there is no occasion for equi- ings aforesaid in the said case of the People table interference. "It would be idle to set of the State of Illinois v. Lynden Evans there in motion the machinery of the law to nulli- is manifest error apparent, in this, to wit," fy that which appears on its own face to be and said allegations numbered 19 and 29 null." Meloy v. Dougherty, 16 Wis. 269. The along with 34 other allegations, come under conclusion follows that Emma J. Glos, not said heading, so that it is obvious that the being prejudiced in any way, is not entitled pleader intended to allege that all of these to maintain this bill of review, and the court 36 assignments of error were for errors aprightly struck it from the files and dismissed! parent on the face of the record. We do the proceedings. not agree with this. But if it be conceded The argument of counsel that Bruschke v. that said points 19 and 29 should be conDer Nord Chicago Schuetzen Verein, supra, strued as referring only to errors apparent is conclusive of their contention that the find- on the face of the record, there is another, aling in the said supplemental foreclosure de- legation which requires evidence dehors the cree is a cloud upon the title, cannot be sus- record to sustain it which is not among the tained. In that case the original proceed- 36 enumerated points coming under said ings tended to show that the Verein had been heading. Said allegation is as follows: made a party thereto by a solicitor entering "And your oratrix further shows unto your its appearance. It is very clear that from this honors that it is fraudulently and falsely entry of appearance and from the finding in stated in said petition of B. H. Collier and the decree that the Verein had been served S. B. Tefft in the affidavit of Andrew M. with process, an inspection of the original Strong thereto attached that your oratrix, records in that case would indicate that the Emma J. Glos, was not in truth and in fact Verein was a party. The evidence showing the owner of said lots or any of them, or of that it was not made a party by entry of ap- any part or parts thereof, during the repearance was brought out on the hearing of demption period from December 8, 1906, to the bill for review by evidence dehors the rec- September 9, 1908, whereas your oratrix was ord in the original proceedings. In that case, during all of said period the owner of an ununder the authorities cited here, the original | divided one-third interest in all of said lots, decree, taken in connection with the other which was well known to the said Andrew pleadings, would be a cloud upon the title of M. Strong, who was during that time engaged the property of Der Nord Chicago Schuetzen in the practice of law in the city of Chicago, Verein. and who had access and knowledge of the existence of such deed by actual knowledge thereof, and also by reason of the fact that the same was on record in the recorder's office of Cook county, Ill., as above described." [10, 11] There is a further reason why the court's decree was proper. A bill of review for error apparent on the face of the record may be filed without leave of court. If the object of a bill is to impeach a decree for fraud, it may also be filed without leave; it being regarded as an original bill in the nature of a bill of review. A bill of review, however, upon the ground of newly discovered evidence, cannot be filed without first obtaining leave, and such leave is necessary in cases where the two grounds, errors of law on the face of the record and newly discovered evidence, are joined. Schaefer v. Wunderle, 154 Ill. 577, 39 N. E. 623, and cases cited; Acord v. Western Pocahontas Corporation (C. C.) 156 Fed. 989; Cole v. Littledale, 164 Ill. 630, 45 N. E. 969; Adamski v. Wieczorek, 170 Ill. 373, 48 N. E. 951; 3 Fncy. of Pl. & Pr. 586. Certain allegations of the original bill can only be established by extrinsic evidence, among others the following: (19) "The affidavit of Andrew M. Strong that Emma J. Glos was not the owner of said premises, or any of them, was false and untrue, and was not and is not binding upon your oratrix, Emma J. Glos." (29) "The affidavit of Clarence A. Counsel for appellants concede that these allegations depend upon extrinsic evidence, but they further contend that, even though it be admitted that such allegations do not refer to errors apparent on the face of the record or to fraud, they obviated the objection thereto by offering, before the court struck the original bill and cross-bill from the files, to amend the original bill so as to show clearly that it was based only on errors apparent on the face of the record and for fraud in obtaining said decree. The offer to amend did not obviate the objection. Ricker v. Powell, 100 U. S. 104, at page 109 (25 L. Ed. 527), very similar questions were under consideration. It was there said: "It is contended, however, that the right to file a bill of review can only be denied when the bill is for newly discovered matter alone, and that as this bill is for errors of law, as well as newly discovered matter, the refusal of leave was equivalent to the denial of a strict legal right, which did not in any manner de In proposition may, with equal propriety, be stated the other way, to wit, that the right to file a bill of review without leave exists only when the bill is brought for error of law alone, and, as this bill is for newly discovered matter as well as error of law, it can only be filed on leave, which rests in the sound discretion of the court. The application was for leave to file the bill as a whole, and not in parts; and if as a whole it required leave, the part which, if it stood alone, could be put on file without, must stand or fall with the incumbrances that have been attached to it. This bill, as a whole, could only be filed with leave, and consequently as Ricker has, by the form of proceedings adopted, .voluntarily waived his strict legal right to file for errors of law without leave, he must abide the rules applicable to cases where leave is required." Appellant Emma J. Glos having, as it were, taken the law into her own hands and filed a bill without leave, the court did not err in striking it from the files, even though in an amended form it might have been filed without leave. The rule requiring leave to be obtained when the bill sets up new matters not appearing on the face of the record, or for fraud, would be practically nullified if a bill filed without leave, containing all manner of improper allegations, could by an amendment made after objections still remain on file as of the date when originally filed. [12] Counsel for appellants contend that this last question could only be raised by demurrer and not by motion. This is not the law. If a bill requiring leave is filed without leave having been first obtained, "it may be demurred to for irregularity or it may be ordered taken off the file, the application for which purpose is, made by motion," etc. 2 Daniell's Ch. Pl. & Pr. (6th Am. Ed.) 1579, and cases cited; Buckingham v. Corning, 29 N.,J. Eq. 238; Hodson v. Ball, 11 Sim. Ch. 456; Cole v. Littledale, supra; 3 Ency. of Pl. & Pr. 589. [13, 14] There remains to be considered the question whether the cross-bill of cross-complainant, Jacob Glos, was also properly stricken from the files and dismissed by the. trial court. The general rule is that the dismissal of the original bill carries with it the cross-bill. 5 Ency. of Pl. & Pr. 662, and cases cited. The original bill here having been dismissed for want of jurisdiction, the crossbill must follow the fate of the original bill. Dows v. City of Chicago, 11 Wall. 108, 20 tion with the original bill. Jesup v. Illinois Central R. Co. (C. C.) 43 Fed. 483; Story's Eq. Pl. (10th Ed.) § 399, and note. On the facts before us the cross-bill here does not come within this exception to the general rule. But if it be granted that it comes within such exception, there is another sufficient reason why the cross-bill was properly dismissed on motion. If the cross-bill could stand after the original bill was dismissed it must be because, in legal effect, it is in its nature an original bill. Necessarily, then, when filed as a bill for review the same rules would obtain as to securing leave of court. The cross-bill, as already stated, sets up facts showing newly discovered evidence, the same as did the original bill of appellant Emma J. Glos. The cross-bill set up also additional facts dependent upon newly discovered evidence dehors the record not found in the original bill, among others the following: (42) "The said tax sale was not conducted in the manner required by law, because the said real estate was not sold in its consecutive order." (47) "Diligent search and inquiry was not made as to the owners or occupants not served with notice on the terms required by law on owners and occupants." If this be considered an original bill, the allegations of newly discovered evidence being united with the allegations as to errors apparent on the face of the record, leave must have been first obtained before it was filed. Such leave not having been obtained, it was properly dismissed on motion. [15] Counsel for appellants further contend that the bill and cross-bill should not have been stricken on motion of appellee Tefft, because it was apparent from the demurrers filed by certain of the appellees, as well as by the motion of said Tefft to dismiss, that she had no interest in said property, having transferred her rights to other appellees. The amended bill and cross-bill made appellee Tefft a party, alleging that she had certain interests. As the court had not made any finding to the contrary, she was entitled to make the motion to strike. Many other points are raised and argued in the briefs which it is unnecessary to consider or decide. The decree of the circuit court wil be affirmed. Decree affirmed. CO. (259 Ill. 350) L. Ed. 65; Day v. Bullen, 226 Ill. 72, 80 N. GRANNON v. DONK BROS. COAL & COKE E. 739; Lowenstein v. Hooker, 71 Miss. 102, 14 South. 531. Counsel for appellants concede that the general rule is as above stated, but insist that that rule only applies when the crossbill seeks relief by way of defense, and not where affirmative relief is sought as to collateral matters properly presented in connec (Supreme Court of Illinois. June 18, 1913. Rehearing Denied Oct. 15, 1913.) 1. MASTER AND SERVANT (§ 245*)-INJURY TO SERVANT-LIABILITY. in a place of known danger, and the servant Where a master directs a servant to work while obeying the order is injured, the servant may recover, provided he exercised due care and *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 682, 778-788; Dec. Dig. § 245.*1 3. MASTER AND SERVANT (§ 222*)-INJURY TO SERVANT-ASSUMPTION OF RISK. A servant, required by the orders of the master to work in a particular place, may assume that the working place is reasonably safe, and he does not assume a danger of injury unless the danger is so apparent that no reasonable man would incur it, and the mere fact that the servant has some knowledge of an attendant danger does not defeat a recovery for a personal injury, where he acts with the degree of diligence which an ordinarily prudent man would exercise under the circumstances. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 648-651; Dec. Dig. § 222.*] [order to work in a dangerous place, the question whether the employé was entitled to the benefit of the rule requiring the employer to exercise reasonable diligence to furnish a reasonably safe place in which to work was immaterial. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 682, 778-788; Dec. Dig. § 245.*] 8. JUDGMENT (§ 18*)-COMPLAINT COUNTSSUFFICIENCY. One good count in the declaration, supported by evidence, and as to which there is no reversible error, is sufficient to support the judgment. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 34-37; Dec. Dig. § 18.*] Error to Appellate Court, Fourth District, on Appeal from Circuit Court, St. Clair County; George A. Crow, Judge. Action by Patrick Grannon against the Donk Bros. Coal & Coke Company. There was a judgment of the Appellate Court (173 Ill. App. 395), affirming a judgment for plaintiff, and defendant brings error. Affirmed. Wise, Keefe & Wheeler and Whitnel, Browning & Gillespie, all of E. St. Louis (Mastin & Sherlock, of Chicago, of counsel), for plaintiff in error. Webb & Webb, of 4. MASTER AND SERVANT (§ 235*)-REGULA- E. St. Louis, and Barthel, Farmer & Klingel, TION OF MINES-STATUTES-CONSTRUCTION. of Belleville, for defendant in error. The provisions of Mining Act (Hurd's Rev. St. 1911, c. 93) §§ 23, 29, prohibiting various acts, some of which apply to miners and others to the operators or owners of mines, and requiring every miner to examine the roof of his working place before commencing work, and where he finds dangerous conditions he shall not work except to make the place safe, and punishing any willful neglect to do the things required to be done, apply to those employés who have a fixed working place in a mine, and do not apply to employés required to work all over the mine wherever fall of material from roofs may occur. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. 8 235.*] VICKERS, J. Patrick Grannon recovered a judgment in the circuit court of St. Clair county against the Donk Bros. Coal & Coke Company for $15,000, for a personal injury caused by a fall of loose rock, slate, etc., from the roof of the coal mine of defendant below, located near Troy, Ill., on or about June 17, 1911. The judgment below having been affirmed by the Appellate Court for the Fourth District, the record has been brought to this court for further review as a return to a writ of certiorari. The original declaration consisted of one 5. TRIAL (§_191*) - INSTRUCTIONS-ASSUMP-count, which alleged common-law negligence. TION OF FACT. Where, in an action for injury to a mine employé struck by material falling from the roof of an entry, the undisputed evidence showed that the assistant mine manager directed the employé and coemployés to proceed with the work after he had examined the roof, and the witnesses merely disagreed as to the exact language used by him in relation to the condition of the roof,. an instruction directing a recovery for the employer if the employé did not rely on any assurance of safety made by the assistant mine manager was not objectionable as assuming that assurances of safety had been given. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 420-431, 435; Dec. Dig. § 191.*] 6. TRIAL (§ 260*)-INSTRUCTIONS-REFUSAL TO GIVE INSTRUCTIONS COVERED BY THE CHARGE GIVEN. It is not error to refuse a requested charge covered by the instructions given. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 7. Master and SERVANT (§ 245*)-INJURY TO SERVANT-LIABILITY. Where an employé sought a recovery for a personal injury on the giving of a negligent By this count defendant in error alleged that he had been in the employ of plaintiff in error as a timberman and a slate shifter, and that it was his duty to clean up and remove falls of slate, rock, etc., in the roadways in plaintiff in error's mine; that on or about the 16th of July, 1911, a fall had occurred in one of the entries or roadways of the mine which was known as the "runaround"; that on the morning after the fall had occurred the assistant mine manager took defendant in error to said fall for the purpose of having him assist in cleaning up and removing the same, and that before defendant in error commenced work the assistant mine manager inspected the roof at the place of said fall to ascertain whether the same was safe, and after such examination told defendant in error and other workmen that the roof was secure, and directed them to proceed to clean up and remove the fall; that the defendant in error, relying upon the assurances of safety given by the assistant mine manager, proceeded to clean up the fall, and while so doing, and while in the exercise of due care for his own safety, and without knowledge or means of knowing of the unsafe condition of the roof above him, a large quantity of loose material fell from the roof down upon defendant in error, permanently and seriously injuring him. Subsequently five additional counts were filed, the first three of which are based upon section 21 of the Mines Act of 1911, and charged a violation of that section by a failure to inspect all places where men were required to pass or work, and to observe whether there were any recent falls or dangerous roadways; a failure to inscribe in some suitable place on the walls of the entry, as evidence of such examination, with chalk marks, the month and day of such examination; and a failure to place a conspicuous mark or sign on the roof indicating where the dangerous places were, as notice to all of the men to keep out. The other additional statutory counts were based upon the same section of the Mines Act, and charged a failure of the mine examiner to take into his possession the entrance check of defendant in error, and to turn such check over to the mine manager before the defendant in error was permitted to enter the mine. The facts, in general outline, are as follows: Plaintiff in error was engaged in operating a coal mine at Troy, in Madison county, Ill., which was operated by means of a shaft, with the various entries, rooms, hallways, etc., usually found in a mine of that character. Defendant in error had worked there for seven or eight years, and had during that time been engaged in substantially every employment about the mine. For something more than a month before the injury the defendant in error was employed as a slate shifter and timberman, and his duties were to clean up falls and remove fallen slate and rock from entries and to timber such places as might require it. On the night of July 16, 1911, a fall occurred in one of the hallways known as the "runaround," connected with the eleventh west entry, which was used as a parting for loaded cars. The run-around was from six to eight feet wide and about five feet high. The fall filled the space from one rib to the other, and extended almost to the top or roof of the entry. About 3 o'clock in the morning of the 17th of July the mine examiner discovered the fall, which at that time practically filled the entire opening of the entry. He was on the east side of the fall, and testifies that he marked with chalk on the rib the date of his visit and placed a danger mark there, and immediately notified the night boss of the fall. A gang of men under the night boss at once commenced to clean up the fall. The fall was the result of the giving away of the timbers which had of the fall the timbers were in place and the roof properly supported. The night gang had not finished cleaning up the fall when they went off watch in the morning. They had removed several car loads of the fallen slate and stone, working from the sides of the fall, which had the effect of lowering the top. About 7 o'clock in the morning of the 17th defendant in error and others entered the mine, and were directed to go to the place of this fall and clean up and remove the same. After defendant in error and his associates had been working 10 or 15 minutes, William Ruff, the assistant mine manager, came to the place where they were working. During the short time the men had been at work before the arrival of Ruff they were working on that part of the fall that was under the undisturbed timbering, and had not gone under the unprotected roof over the main part of the fall. Upon the arrival of Ruff he directed them to suspend work until he made an examination of the roof over the fall. Ruff climbed upon the top of the fallen rock and sounded the roof with a pick handle. After he had finished his examination he made a statement, in the presence of defendant in error and his associates, in regard to the condition of the roof. The witnesses differ somewhat as to the exact language used by Ruff. Some of the witnesses say that what he said was, "The roof is fair;" others say that his language was, "The roof is all right; go ahead and clean up;" and still others say that he said, "It sounds pretty good; all right; go ahead." Ruff himself does not deny the statements, or any of them, attributed to him, but says in regard to the roof that it sounded a little "drummy" on the edge; that it was soapstone-more brittle than slate-but he did not at that time think there was any danger of its falling immediately. Defendant in error claims that he relied on the assurances given by Ruff as to the condition of the roof and proceeded with his work. In about 15 minutes after Ruff had sounded the roof it fell upon defendant in error, inflicting the injuries complained of. [1] Defendant in error claims that there is a liability under both the common-law and statutory counts, while plaintiff in error contends that there is no liability under either. It is argued that the motion for a directed verdict should have been sustained because the evidence fails to show a violation of any duty owing to defendant in error under the common-law count. The substance of that count is that plaintiff in error wrongfully and negligently directed defendant in error to proceed to work under the overhanging rock in the roof when it was dangerous to do so, and that said danger was known to plaintiff in error, or by the exercise of due diligence would have been known to it, and the master directs the servant to work in a and others to the operator or owner of the place of known danger, and the servant while obeying such order is injured, he may recover for such injury if he is himself in the exercise of due care and the danger is not so apparent that no reasonable man would undertake to obey the order given. This rule was applied in Consolidated Coal Co. v. Wombacher, 134 Ill. 57, 24 N. E. 627, under a state of facts very similar to that presented by the evidence in this case. [2] The evidence tends to prove that after Ruff examined the roof above this fall he ordered the men to proceed to clean it up. He necessarily knew that to carry out his order it would be necessary for the men to work under the unsupported roof. It is wholly immaterial whether Ruff said it was safe or all right, or used any of the other expressions testified to in regard to the condition of the roof. There is no dispute whatever that after he climbed upon the top of the fall and made an examination of the roof he directed the men, including defendant in error, to proceed and clean up the fall. The unqualified order to proceed with the work, after he had made his examination of the roof, of itself amounted to an implied assurance that the roof was safe. Cooley on Torts (3d Ed.) 1134; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876. mine, and some of which may be applicable indiscriminately to all persons. Subclause (c) of paragraph 6 of said section is as follows: "Every miner shall sound and thoroughly examine the roof of his working place before commencing work, and if he finds loose rock or other dangerous conditions, he shall not work in such dangerous place except to make such dangerous condition safe. It shall be the duty of the miner to properly prop and secure his place for his own safety with materials provided therefor." Section 29 of the same act provides that any willful neglect, refusal or failure to do the things required to be done by any section, clause, or provision of the act, by the person or persons therein required to do them, or any violation of any of the provisions or requirements of the act, shall be deemed a misdemeanor, punishable by a fine not exceeding $500, or by imprisonment in the county jail for a period not exceeding six months, or both, in the discretion of the court. This general provision is followed by a proviso applicable only to the operator making the willful violation of the act a ground for a civil action for damages. This statute applies to those employés who have a fixed Working place in the mine. It has no application to employés who, like defendant in error, were required to work all over the mine in one place as well as another, whereever falls might occur. [3] It is the duty of the master not to send his servant into a place of danger, and when the servant is required by the orders of the master to work in a particular place, he has that the court erred in modifying its four[5] The plaintiff in error next contends a right to assume that the master has dis- that the court erred in modifying its fourteenth instruction. That instruction, with charged his duty in regard to an examina- the modification made by the court, which is tion of the surrounding circumstances; and indicated by quotation marks, is as follows: if the servant, in the exercise of ordinary "The court instructs the jury that if you care for his own safety, proceeds to execute believe, from the evidence in this case, that the order and to do the work required of the plaintiff was one of a gang of men emhim, he will not be held to have assumed the ployed by the defendant for the purpose of danger of injury unless the danger was so timbering, cleaning up falls, and making unapparent that no reasonable and prudent safe conditions in such mine safe, and that man would incur it. Offut v. World's Co- on the morning of July 17, 1911, the plaintiff lumbian Exposition, 175 Ill. 472, 51 N. E. went, with a number of other employés en651. In such case the servant will not be de-gaged in the same line of work as himself, for feated of his right to recover even though the purpose of cleaning up the fall, and that he has some knowledge of the attendant he there observed other members of the same danger, if, in obeying the order of the mas- gang to which he belonged sounding the roof ter, he acts with the degree of diligence and making tests of the roof as it then existwhich an ordinarily prudent man would ex-ed, for the purpose of ascertaining whether ercise under the circumstances. Illinois the same was safe to work under, and that Steel Co. v. Schymanowski, supra; Consolidated Coal Co. v. Haenni, 146 Ill. 614, 35 N. E. 162. [4] Plaintiff in error contends that a verdict for it should have been directed by the court below as to the common-law count because, it is said, defendant in error was guilty of contributory negligence as a matter of law. This contention is based on subclause (c) of paragraph 6 of section 23 of the Mining Act of 1911. Hurd's Stat. 1911, p. 1560. Section 23 of the statute referred to is entitled "Special Rules," and prohibits vari those engaged with him did make tests of such roof, pronounced the same safe, and that acting upon his judgment the plaintiff proceeded to do the work of cleaning up the fall, and 'did not rely upon any assurance of safety made by Ruff,' and while so working the portion of the roof which his coemployés had tested-if you find from the evidence they did test it-fell, and thereby the plaintiff was injured, then you are instructed that the plaintiff is not entitled to recover in this case under the original declaration, and you should by your verdict find the defendant not |