APPEAL from the Circuit Court of St. Clair County; the Hon.
JOSEPH E. FLEMING, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1974.
Defendant appeals a judgment rendered for plaintiff on a jury verdict in the amount of $500,000 for personal injuries received when the plaintiff fell into a burning pile of slack or coal dust.
The site of the occurrence was a tract of 22 1/2 acres which had been devoted to coal mining purposes. Prior to 1947 the property was owned by the Perry Coal Company. That company operated the mine until about 1934 or 1935 when their operation ceased. The mine was thereafter operated by two individuals who served as "trustees" for a short period of time. The plaintiff contends and the defendant denies that the operation by the trustees was at the instance of and for the Perry Coal Company. Following the operation by the trustees the mine was operated by the Coulterville Coal Company. Again, the plaintiff argues and the defendant denies that this operation was at the instance of and for the Perry Coal Company. All mining operations ceased and the mine was closed in 1944 or 1945. About 1946 the top buildings were removed and the tipple burned. The 22 1/2 acre tract was conveyed by quit claim deed by the Perry Coal Company to Ralph Jones, the father of the plaintiff, on April 2, 1947 for a consideration of $400. Subsequent to the sale of the land, by a series of corporate mergers or purchases, the particulars of which are unimportant here, the assets and liabilities of the Perry Coal Company were merged into and assumed by the defendant-appellant, Peabody Coal Company.
As a by-product of the mining operation there was accumulated a pile of slack or coal dust. It was situated approximately 15 feet from the main mine shaft and its approximate dimensions were 300 feet long, 50 feet wide at one end and 200 feet wide at the other. Plaintiff's father had purchased the abandoned mine property for use as a junkyard and at the time of the occurrence was devoting it to that purpose. On Sept. 11, 1953 the plaintiff, then five years of age, accompanied her father to the mine property where he was to pick up some junk. While her father was working with his load, plaintiff was playing on the slack pile when its surface gave way and she fell feet first into the burning interior of the pile receiving serious and permanent injuries to her feet and legs.
Perspective will be gained by setting forth in sequence the dates of the events embodied in this case. The mine ceased operation by Perry Coal Company in 1934 or 1935; it ceased all operation and was closed in 1944 or 1945. In 1946 the buildings were removed and the tipple burned. The mine property was sold to plaintiff's father in April 1947. Plaintiff was born in March 1948. Plaintiff was injured in the fire in September 1953 when she was five years old. This case was commenced by the filing of a complaint on October 31, 1968. At the time the complaint was filed plaintiff was married and the mother of two children.
On this appeal both parties agree that the liability of defendant turns upon the question of the liability of a vendor for a known undisclosed dangerous condition upon land at the time of its transfer and that the governing rules of law are as stated in Restatement (Second) of Torts § 353. That section provides:
"(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if
(a) the vendee does not know or have reason to know of the condition or the risk involved, and
(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.
(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions."
This section of the Restatement was invoked in the Illinois case of Kordig v. Grovedale Oleander Homes, Inc., 18 Ill. App.2d 48, 151 N.E.2d 470, as a correct expression of the applicable law. But the quoted section of the Restatement in fact represents an exception to the general rule of law which is that a vendor of land is not liable for injuries caused to his vendee or others upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time the vendee took possession. See Kordig v. Grovedale Oleander Homes, Inc.; Restatement (Second) of Torts § 351; Prosser, Law of Torts, par. 64 (4th ed. 1971).
Plaintiff's complaint alleged negligence by defendant and its predecessors in title, in sum, that
"4. That on the aforesaid date there did exist on said property a large mound of slag and coal dust capable of burning and smoldering deep within it without appearing to do so and which said slag and coal dust was so in fact burning and smoldering on said date and continued to burn and smolder for many years thereafter creating a dangerous and hazardous condition thereby to persons nearby, all of which facts these defendants by and through their agents, predecessors and assignors knew, or in the exercise of reasonable and ordinary care, should have known.
5. That at said time and place these defendants by and through their predecessors, agents, and assignors did negligently and carelessly commit one ...