Alton Paving, Bldg. & Fire-Brick Co. v. Hudson

• Decision Date: 24 October 1898
• Citation: 52 N.E. 256,176 Ill. 270
• Court: Illinois Supreme Court
• Parties: ALTON PAVING, BUILDING & FIRE-BRICK CO. v. HUDSON.

176 Ill. 270

52 N.E. 256

ALTON PAVING, BUILDING & FIRE-BRICK CO.

v.HUDSON.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, Fourth district.

Action by William Hudson against the Alton Paving, Building & Fire-Brick Company. A judgment for plaintiff was affirmed in the appellate court (74 Ill. App. 612), and defendant appealed. Affirmed.

Wise & McNulty, for appellant.

J. E. Dunnegan and Travous & Warnock, for appellee.

WILKIN, J.

This suit originated in the circuit court of Madison county upon a declaration in case by William Hudson against the Alton Paving, Building & Fire-Brick Company, to recover damages for an injury to his person, alleged to have been received through the negligence of the defendant. There were two counts in the declaration. The first alleged that plaintiff was employed by the defendant to operate and oil the machinery of a certain steam shovel used by the defendant for the purpose of removing shale from an embankment; that the embankment was about 18 feet high, about 10 feet of the lower portion of it being composed of shale, and the balance of clay, the shale portion being removed by the use of the steam shovel, and the clay portion by hand shovels; that the plaintiff was without experience in working in and about embankments, and so notified the defendant before entering into its employment; that it was the duty of the defendant to keep the embankment in a reasonably safe condition, so that plaintiff, in performing his duties, would not be endangered by clay falling upon him; that it carelessly and negligently failed to keep the embankment in a reasonably safe condition, but carelessly and negligently undermined the clay portion of it to such an extent that it became unsafe and insecure; that, by reason of plaintiff's inexperience in working in and about clay embankments, he was not aware of the dangerous condition of the same, and while performing his duties, oiling the machinery, and exercising due care, a large part of the clay portion of the embankment, by reason of its being so insecure, broke, and fell upon him, causing him to be injured, etc. The second count is not materially different from the first, except that it avers the plaintiff was directed by the defendant to perform his duties in manipulating and oiling the machinery under the direction of one Aaron Borden, the foreman, and to obey all orders given by him; that while the embankment was in an unsafe condition, as alleged in the first count, he was ordered by Borden to oil a portion of the machinery of the steam shovel, and in obeying said order, while exercising due care, a large part of the clay portion of the embankment, by reason of its being insecure, as aforesaid, fell from over the shale portion thereof, and upon the plaintiff, permanently injuring him, etc. The plea was not guilty. A trial by jury resulted in a verdict for the plaintiff, assessing his damages at $7,500. A motion for new trial was overruled, and judgment entered upon the verdict, which judgment, on appeal to the appellate court for the Fourth district, was affirmed.

The argument of counsel for the appellant is devoted chiefly to a discussion of the evidence. It appears from the record that, at the close of the plaintiff's evidence, the court was asked to instruct the jury to find for the defendant, which request was denied. Thereupon it proceeded to introduce its evidence. There was no instruction asked to find for it at the close of all the evidence, nor was the court requested in any way to withdraw the case from the consideration of the jury. In the series of instructions asked on behalf of the defendant upon the final submission of the case, an instruction to find for the defendant was presented and refused. Notwithstanding this state of the record, counsel insist that it is the duty of this court to review the testimony, and determine whether there is any evidence in the record fairly tending to support the allegations of the declaration. If this position is to be maintained, not only section 89 of the practice act must be ignored, but a long line of decisions by this court overruled. We have uniformly held that, in order to bring before this court for review the evidence in a case of this kind coming from the appellate court, the defendant must move the court to take the case from the jury at the close of all the evidence, and before its submission to the jury. These decisions proceed upon the theory that such a motion raises the question in the trial court whether, as a matter of law, there is any evidence fairly tending to support the...