American Car & Foundry Co. v. Hill

• Decision Date: 11 April 1907
• Citation: 80 N.E. 784,226 Ill. 227
• Court: Illinois Supreme Court
• Parties: AMERICAN CAR & FOUNDRY CO. v. HILL.

226 Ill. 227

80 N.E. 784

AMERICAN CAR & FOUNDRY CO.

v.HILL.

Supreme Court of Illinois.

Feb. 21, 1907.

Rehearing Denied April 11, 1907.

Appeal from Appellate Court, Fourth District.

Action by William Hill against the American Car & Foundry Company. From a judgment of the Appellate Court, affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Farmer, J., dissenting.

B. H. Canby and Alexander W. Hope, for appellant.

J. M. Bandy and Keefe & Sullivan, for appellee.

This is an appeal from a judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of Madison county in favor of appellee, and against appellant, for $1,999. From the evidence it appears that appellant was engaged in the business of building railway cars, and that it had a factory in Madison county; that a part of its equipment was a large building 200 feet in width, 400 feet in length, and about 20 feet high, which, until shortly before the day of the accident in which appellee was injured, had been used by it as a paintshop; that for several days before March 21, 1905, the date of the accident, appellant had been engaged in tearing down this building for the purpose of erecting another building upon its site; that the building was a frame structure, supported by timbers about 10 by 12 inches in size, rows of which extended the entire length of the building at intervals of about 20 feet; that appellee had been in the employ of appellant as an errand boy and in taking car wheel numbers for about 9 months prior to that date, and had, until the day of the injury, been, during the time of his employment with appellant, at work exclusively in its shipping department, under a foreman by the name of Howard; that he was directed by Howard to go to work under a foreman by the name of Deese, who had charge of a gang of men who were cleaning up the débris about the dismantled paintshop; that Deese put him to work, with several others, loading tar paper and other rubbish upon trucks and wheeling it to the boiler room; that Deese had nothing to do with the work of wrecking the building, this work being in charge of a foreman by the name of Kenner; that appellee was at work, under Deese's direction, in the southwest corner of the paintshop, and, without knowledge on his part that the further work of taking down the building was progressing, Kenner set his men to work taking down the supports or bents in the southeast corner of the building; that it was their intention to take the bents down one at a time; that the wrong support was sawed off, which caused two rows of bents to fall without warning; and that appellee was caught under these large and heavy timbers, his limbs broken and crushed, and his skull fractured, resulting in very painful and dangerous injuries of a permanent nature.

HAND, J. (after stating the facts).

It is first contended that the judge before whom the case was tried was not qualified to sit at the trial thereof. It appears from the record that a change of venue was taken from Judges Burroughs and Moore, two of the judges of the Third circuit, on the ground that the said judges were prejudiced against appellant; that the case then came on for trial before Judge Dunnegan, judge of the city court of Alton, in said Madison county, he being the presiding judge at said sitting of the circuit court of Madison county; that the name of Judge Dunnegan had not appeared in the application for a change of venue; that a second application for a change of venue on the ground of the prejudice of Judge Dunnegan was then made by appellant and denied by the court, for the reason that one change of venue had already been had in said case. The statute provides that judges of city courts may interchange with each other and with the judges of the circuit courts. Judge Dunnegan was therefore qualified to preside at the trial of said cause. One change of venue having been already granted, the court properly refused the second application. Where a change of venue is sought on the ground of prejudice of the judge or judges of the court wherein the case is pending, we see no occasion to send the case out of the county for trial, where a judge not disqualified by the application for a change of venue can hold or is holding a term of said court in the county in which the suit was brought; nor is the fact that this case was not sent to some other county a ground for reversal. In the case of Chicago & Alton Railroad Co. v. Harrington, 192 Ill. 9, 61 N. E. 622, where the trial court refused to grant a change of venue, and this was urged as reversible error in this court, it was held, inasmuch as it appeared that a judge other than the one from whom the change was sought presided at the trial, ‘this arrangement rendered a change of venue unnecessary and took away the right of either party to make an application.’ The judge presiding being by law qualified to try said case, we are of the opinion that the fact that other judges were also qualified, in the circuit and without it, to perform such duty in no way affected the legality of this trial.

As to the contention that the court erred in refusing to grant a continuance on the ground of the absence of a materialwitness, it was admitted by appellee that said witness would, if present, testify to the facts set out in the affidavit for a continuance, and the affidavit was read to the jury. We do not think the trial court erred, on the facts disclosed, in refusing to grant the application for a continuance.

No demurrer was filed to the declaration, nor was the question of its sufficiency challenged or submitted to the court, except by the following instruction, offered by appellant with its other instructions, which was refused by the court: ‘The court instructs the jury that plaintiff's declaration contains a single count and is faulty in law, and the jury will disregard such declaration.’ It is contended that said instruction presented to the consideration of the court the question of the sufficiency of the declaration, and that the same should have been given, and the case taken from the jury for want of a sufficient declaration. This instruction could raise no question that could not have been presented by demurrer, and, conceding the instruction was offered in time, the declaration must be tested in the same manner as if a demurrer had been filed thereto, in arriving at a determination of the question as to whether the court erred in not giving said instruction to the jury.

Matters of evidence and facts proved cannot be considered in connection with the question whether or not appellee has stated by his declaration a cause of action. The question as to whether the cause of action stated by the declaration has been made out by the proof is a separate and distinct proposition. In effect, the declaration charges that appellant was a corporation engaged in the business of operating a plant for the manufacture of railroad cars in the county of Madison and state of Illinois; that as a part of its equipment it possessed a large shed, which on March 21, 1905, was...