Calumet Iron & Steel Co. v. Martin

• Decision Date: 21 November 1885
• Citation: 115 Ill. 358,3 N.E. 456
• Court: Illinois Supreme Court
• Parties: CALUMET IRON & STEEL CO.v.MARTIN, Adm'x, etc.

115 Ill. 358

3 N.E. 456

CALUMET IRON & STEEL CO.

v.MARTIN, Adm'x, etc.

Supreme Court of Illinois.

Filed November 21, 1885.

Appeal from appellate court, First district.

Flower, Remy & Gregory, for appellant.

Monroe & Leddy, for appellee.SCHOLFIELD, J.

This is an appeal from a judgment of the appellate court of the First district affirming a judgment of the superior court of Cook county in an action on the case brought by appellee against appellant. Appellant operated iron and steel works at Cummings, in Cook county, and appellee's intestate, at the time he received the injuries whereof he died, was in its employ as a fireman. His duties were to assist in keeping up the fires under the boilers, of which there were 18, constituting a battery, and in cleaning them. One-half of the boilers were cleaned each Sunday. They were connected with a steam-drum, which they supplied with steam, and from which steam was furnished to the engines. Boilers 1 and 2 were furnished with a connection direct with the steam-pumps, so that when the other boilers were not making steam these two, or either of them, could be used to run the pumps. This connection communicated with the steam-drum, although there was a valve which shut off such communication when closed. There was also on each of boilers 1 and 2 a valve which shut off the access of steam to this connection for running the pumps. That valve was usually controlled by an eight-inch wheel, but this was broken off. The valve was opened and closed, after the wheel was broken off, by a pair of ‘pipetongs.’ Under each mud-drum is an escape-valve through which the boilers were blown off. The valve controlled by the wheel which was broken off was not closed, but was thought to have been closed by Flaherty, the foreman. On Sunday morning, October 1, 1882, the foreman, Flaherty, ordered appellee's intestate and one Lee to clean out certain boilers which had been previously marked or chalked by Flaherty for that purpose. They were proceeding to obey the order, and while they were in the act of taking off the head of the mud-drum of boiler No. 1 an explosion occurred, seriously injuring them both. The intestate died in consequence within a few hours. The cause of the explosion was the escape through the valve controlled by the broken wheel. The valve under the mud-drum was found closed after the explosion. The master mechanic of appellant was notified of the broken wheel a week or more before the explosion, but neglected to repair it until afterwards.

Three reasons are urged why, on the facts, there should be no recovery:

‘ First. The proof is that the broken wheel in nowise contributed to the accident, because the valve could be managed just as well with tongs, and failure to close it was due to the negligence of Flaherty, a co-employe with deceased, or to inevitable accident. Second. The wheel had been broken off a week or over, was in plain sight when on, and its absence must have been perfectly apparent to deceased. He took the risk, therefore, in not objecting or refusing to work with it in that condition. If he was ignorant of this defect, it was for appellee to plead and prove that fact. Third. It was contributory negligence of the grossest character for deceased to close the escape-valve under the mud-drum, or to attempt to take off the mud-drum head, when the escape of steam through this valve warned him that he ran some risk in working on that boiler while there was yet steam in it.’

There is, in our opinion, evidence in the record tending to support the opposite of each of these contentions, so that the questions were sufficiently before the jury for their determination; and we are therefore relieved by the judgment of the appellate court from giving them further consideration. Chicago & A. R. Co. v. May, 108 Ill. 288; Missouri Furnace Co. v. Abend, 107 Ill. 44; Peoria & P. U. Ry. Co. v. Clayberg, Id. 644; Chicago, B. & Q. R. Co. v. Bell, 112 Ill. 360.

As pertinent to the question presented by the third of these reasons, counsel for appellant asked the court to instruct the jury, as expressed in his second instruction, not including what is printed in intalics, but the court modified it by adding what is printed in italics, and in this form gave it to the jury, it then reading thus:

‘ Second. Again, if you find from the evidence that the accident in question would not have occurred if the escape-valve under the mud-drum had been open, and that it ought to have been open, and that it was, in fact, improperly shut, either through the negligence of Flaherty or of Martin or of Lee, and that this was the cause of the accident, then the plaintiff cannot recover.’

Counsel for appellant contend that the modifications of the court ‘were unnecessary and erroneous, directing the attention of the jury to misleading considerations of morals or propriety apparently difficult for anybody to understand as applied to this case.’ Concluding that the modifications were not necessary, still it does not follow that making them was such error as would authorize a reversal. They but express what was before implied. There is no ‘consideration of morals' involved. A jury, we think, would understand by the words ‘and that it ought to have been open’ that the duty of the foreman and the intestate and Lee was to have seen that it was open; and the word ‘improperly’ correctly applies to keeping a valve shut when duty required it to be kept open.

The first instruction given at the instance of appellees is as follows:

‘ First. The court instructs the jury that if they shall believe from the evidence that on or about October 1, 1882, the plaintiff's intestate, Patrick Martin, was in the employ of the defendant company as fireman, and that while in the discharge of his duty as such fireman that he was using ordinary care and prudence for his personal safety while he was so employed, and that he was injured and killed by reason of the explosion of a certain boiler in the possession of and under the control of the defendant company, as alleged in the declaration; and if the jury shall further believe from the evidence that the explosion of said boiler as caused by negligence of the defendant company in allowing one of the wheels which controlled one of the valves of said boiler to be and remain broken off, so that the valve could not be operated properly with safety, and allowing the same to be and remain in an unsafe and defective condition to be used and operated, (if the same was so defective,) and that the defendant company had actual knowledge of such defective condition; if the jury believe from the evidence it was so defective, or would by the exercise of reasonable care and caution have discovered such defective condition,-then your verdict should be for the plaintiff, if he left a widow and children surviving him, as alleged in the declaration, and she took out letters of administration as therein alleged.’

Counsel for appellant contend this is erroneous, because- First, it assumes the defendant was guilty of actionable negligence in failing to put a new wheel upon the valve through which the steam escaped into the boiler; and, secondly, the evidence in the record tends strongly to charge the intestate with contributory negligence, yet the jury are told that if the intestate used ordinary care and prudence the plaintiff can recover, if the accident was due to the negligence of the company, instead of telling the jury that the plaintiff could recover only in the event that the negligence of the intestate was slight, and that of the defendant gross, in comparison with each other. Neither contention is tenable.

1. Nothing that was contested upon the trial is assumed in the instruction. The fact that ‘one of the wheels which controlled one of the valves of the boiler’ that exploded was, at the time of the explosion, and that for some time prior it had been, broken off was admitted on the trial by both sides, and is conceded as a fact in the instructions asked and given at the instance of appellant. Whether negligence in allowing that wheel to be and remain broken off caused the explosion, and whether appellant had actual knowledge of the fact of the wheel being broken off, or would, by the exercise of reasonable care and caution, have discovered such fact, are fairly left to be determined by the jury from the evidence.

2. The ground of the second contention is thus stated by counsel:

‘It is now the settled law of this court that a man may exercise ordinary care and yet be guilty of slight negligence. Therefore, consistently with the hypothesis of ordinary care and prudence on the part of deceased contained in this instruction, slight negligence might be imputed to him. If so, there could be no recovery, unless the negligence of appellant was gross in comparison with that of deceased, slight negligence not being inconsistent with ordinary care. To instruct the jury that if the deceased observed ordinary care there might be a recovery, if his death was due to appellant's negligence, is to say that if deceased was guilty of slight negligence there might be recovery if defendant was guilty of negligence. This, as will appear, is not the law. In such case there could be a recovery only if defendant was guilty of gross negligence.’

Counsel are hardly in a position to raise this objection, for, in the first instruction, they induced the court to give the law to the jury in the identical language which they thus contend is erroneous. That instruction is as follows:

‘ First. The negligence alleged against the defendant by plaintiff is a failure to keep in safe condition, or repair properly, machinery. If you should find from the evidence, and under the instructions of the court, that the accident shown in evidence occurred through the fact that the wheel operating the valve was broken, and that this was the direct cause of the accident, and that the defendant's agent or agents, whose...