68 N.E. 936 (Ill. 1903), Webster Mfg. Co. v. Nesbitt

Citation:68 N.E. 936, 205 Ill. 273
Opinion Judge:[205 Ill. 275] WILKIN, J.
Party Name:WEBSTER MFG. CO. v. NESBITT. [*]
Attorney:[205 Ill. 274] Francis T. Murphy (Edward C. Higgins, of counsel), for appellee.
Case Date:October 26, 1903
Court:Supreme Court of Illinois
 
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Page 936

68 N.E. 936 (Ill. 1903)

205 Ill. 273

WEBSTER MFG. CO.

v.

NESBITT. [*]

Supreme Court of Illinois

October 26, 1903

Appeal from Appellate Court, First District.

Action by Adam Nesbitt against the Webster Manufacturing Company. From a judgment of the Appellate Court (105 Ill.App. 261) affirming a judgment for plaintiff, defendant appeals. Reversed.

[205 Ill. 274] Francis T. Murphy (Edward C. Higgins, of counsel), for appellee.

[205 Ill. 275] WILKIN, J.

Appellee recovered a judgment in the superior court of Cook county against appellant for $6,000, in an action for a personal injury alleged to have been sustained by him, while in the employ of appellant, on September 23, 1897, which judgment has been affirmed by the Appellate Court for the First District. Appellant prosecutes a further appeal to this court to reverse the judgment below.

The declaration consists of five counts, in one or more of which it is alleged defendant negligently furnished and supplied plaintiff with an 'old, insufficient, unsafe, and dangerous tool with which to work; that defendant was notified of the condition of said tool, and thereupon promised to repair the same, and induced the plaintiff to continue its use.' The evidence shows that the appellee at the time in question was at work as a blacksmith in the shop of appellant, working with a helper by the name of Neunschwander, who was using what is known as a 'backing hammer,' the face of which had become somewhat chipped and out of repair. It further tends to prove that a few days before the accident the tool was shown to appellant's foreman by appellee, and complaint made as to its condition, and the foreman promised to have it fixed; that, on the day of the accident, appellee again took it to the same foreman, and asked him for the privilege of fixing it, complaining of its condition, to which the foreman replied: 'Well, go ahead and use it now, and I will fix it, or get some one to fix it. Don't stop that job. I am in a hurry.' Afterwards, while appellee and the helper were engaged upon the work, a small particle of steel flew from one of the hammers as the helper struck a blow, hitting appellee in one eye and destroying the sight. [205 Ill. 276] The jury specifically found that the chip or particle flew from the said backing hammer. At the close of plaintiff's evidence, and again at the close of all the evidence, the defendant requested the court to peremptorily instruct the jury to render a verdict of not guilty, but both instructions were refused, the refusal of which is assigned for error as a question of law. From a careful reading and consideration of the evidence, we find the only counts relied upon by plaintiff for a recovery were those alleging that the defendant negligently furnished the helper with an old, insufficient, and dangerous backing hammer with which to...

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