Works v. O'Donnell
| Decision Date | 19 June 1901 |
| Citation | 191 Ill. 236,60 N.E. 831 |
| Parties | WILLIAM GRAVER TANK WORKS v. O'DONNELL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Action for the death of Isaac D. Alyea, by P. H. O'Donnell, as administrator of his estate, against the William Grave Tank Works. From a judgment of the appellate court (91 Ill. App. 524) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.
A. B. Melville and F. J. Canty, for appellant.
Ela, Grover & Graves and Wing & Chadbourne, for appellee.
This is an action on the case, brought in the circuit court of Cook county by the appellee, as administrator of the estate of Isaac D. Alyea, deceased, to recover damages for negligently causing the death of his said intestate. A trial resulted in a verdict in favor of appellee for $5,000, upon which verdict, after overruling a motion for a new trial, the court rendered judgment, which judgment has been affirmed by the appellate court for the First district, and a further appeal has been prosecuted to this court.
The appellant, at the close of appellee's evidence, and again at the close of all the evidence, moved the court to withdraw the evidence from the jury and to instruct them to find for the appellant, which the court declined to do, and which action of the court in that regard was excepted to by the appellant, and is relied upon mainly as a ground for reversal in this court. There was little conflict in the testimony. On September 9, 1896, Isaac D. Alyea, who was an employé of the appellant, was injured by falling from a scafford used in the erection by appellant of a steel grain elevator in the city of Chicago, from the effect of which he died on the following day. Said elevator was 50 feet high and 30 feet in diameter, and was constructed of steel sheets 10 feet long and 5 feet wide, riveted together, the floor and roof thereof being of the same material. After the bottom was placed in position, pieces of said steel plate were placed thereon and riveted to it and end to end, until they formed a circular wall 5 feet high. A scafford, both on the inside and the outside of the tank, was then erected, in order that the next section of 5 feet might be riveted onto the first section. Such scaffold was carried up on the inside and the outside of the tank until the top was reached, when the tank was roofed over. In order to do this, appellant's employés, including Alyea, screwed together three sections of 6-inch iron pipe, and set the pole thus formed in the center of the tank. On top of this they put a steel collar, upon which rested one end of cretain iron beams, the other end being supported by the circular scaffold on the inside of the tank. On these beams planks were laid, and on the planks the workmen stood while putting on the iron rafters on which the roof plates were placed. A man by the name of Platt had charge of building the scaffolds. Alyea was a carpenter, and worked on the inside scaffold. When the roof was completed the workmen commenced to take down the scaffolding.Firstthey removed the top from the center scaffold, then the side beams, then cut the stay wires and moved the pipe over to one side, against the scaffold, just as it was when they had finished screwing it together, and before they had moved it to the center of the tank. They then attempted to unscrew the bottom length of the pipe, preparatory to taking it down. There were present at that time Holub, Alyea, Streed, Flanagan, Platt, and Wedgewood, and a man by the name of Lee, who was general foreman of appellant in the tank-construction work. Flanagan and Platt were at the top of the inside scaffold, holding the pipe. Alyea and Streed were on the same scaffold, about 18 feet from the floor, holding the pipe,-Alyea, with tongs, and Streed, with a rope around the middle section,-while Lee, Holub, and Wedgewood, holding the pipe at the bottom with tongs, attempted to unscrew the bottom section thereof, when Alyea either fell or was twisted off from the scaffold. At the time Alyea was directed to go up on the scaffold with the tongs to hold the pipe, he said to Lee, ‘There is only one plank there,’ to which Lee replied, ‘Go up there; damn it! get up there,’ when he immediately went up onto the scaffold, and took hold of the pipe with the tongs.
The law is well settled that, where there is evidence tending to establish a cause of action, it is not error to refuse a peremptory instruction to find for the defendant (Syrup Co....
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