Chicago & Grand Trunk Ry. Co. v. Spurney

• Decision Date: 19 June 1902
• Citation: 197 Ill. 471,64 N.E. 302
• Court: Illinois Supreme Court
• Parties: CHICAGO & GRAND TRUNK RY. CO. v. SPURNEY.

197 Ill. 471

64 N.E. 302

CHICAGO & GRAND TRUNK RY. CO.

v.SPURNEY.

Supreme Court of Illinois.

June 19, 1902.

Error to appellate court, First District.

Action by Frank Spurney against the Chicago & Grand Trunk Railway Company. From a judgment in favor of plaintiff, affirmed by the appellate court (97 Ill. App. 570), defendant brings error. Affirmed.

Kenesaw M. Landis (Sol. Rosenblatt, of counse), for plaintiff in error.

Theodore G. Case, for defendant in error.

BOGGS, J.

The judgment of the superior court of Cook county, awarding the defendant in error a judgment in the sum of $15,000 in an action on the case to recover damages for personal injuries sustained by him, was affirmed by the appellate court for the First district. This is a writ of error to bring the judgment of affirmance in review in this court.

The injury was inflicted on the 20th day of April, 1888. The cause was submitted to and tried by three juries, and has twice been heard in the appellate court. It is complained the trial court permitted the introduction of evidence to establish that the plaintiff in error company was guilty of specific grounds of negligence not alleged in the declaration, and that the trial court should have sustained the motion entered by the defendant company to direct a peremptory verdict on the ground there was no evidence to show the defendant was guilty of the negligence charged in the declaration. The trial proceeded on the first count, only, of the declaration. In that count, after stating the plaintiff was in the employ of the said defendant as a laborer in its grain elevator, and that it was his duty, among other things, to assist in loading and unloading grain and to guide and handle certain grain shovels so used in said elevator and cars to unload cars of grain, which said grain shovels were connected with machinery which was operated by steam; that said grain shovels were moved by a rope, one end of which was attached to an automatic pulley geared upon the main shaft of said machinery, the other end of said rope being attached to the said grain shovel, and said shovels being guided by defendant in error and other operators who handled them in the car of grain to be unloaded,-the declaration proceeded as follows: ‘And thereupon it became and was the duty of the said defendant to provide the plaintiff with reasonably safe machinery, means, appliances, and facilities for doing said work, and to exercise ordinary care to protect the plaintiff while so at work; yet the defendant, not regarding its duty in that behalf, then and there negligently failed to provide any means of warning for the plaintiff when said machinery was about to be put in motion, more particularly when said machinery was about to be put in motion at a time of day when it was not usual or customary to run said machinery; that thereby and therefrom the said plaintiff, with due care and caution for his own safety in that respect, and while, in the course of his said employment, then and there adjusting and placing in a proper position for use the rope connecting said grain shovel with said machinery, was by reason of the negligent, careless, and improper conduct of the said defendant in setting said machinery in motion (which act on the part of the said defendant the said plaintiff had no reason to expect or anticipate), causing said rope to be drawn rapidly upward upon said automatic pulley, caught and entangled in said rope, and was drawn and thrown violently upon and against a certain post and timber there throught which said rope passed; that thereby the plaintiff's leg was bruised, crushed, broken, and mangled, and was injured so that it had to be amputated and reamputated, and various other portions of the body of said plaintiff were mangled, bruised, and injured.’ The evidence established, without contradiction, the truth of the charge in the declaration that the plaintiff in error had not provided any means of warning the defendant in error or other of its workmen that the machinery was about to be put in operation. ‘Where a tort is averred and the substance of the allegation is proved, a variance is not material if the opposite party has not been misled.’ 22 Enc. Pl. & Prac. 566. The alleged variant testimony had no tendency to mislead the plaintiff in error company, as will hereinafter be made to appear. The defendant in error as a witness, and the other witnesses produced in his behalf, were allowed, over the objection of the plaintiff in error, to testify that the foreman, or a workman denominated a ‘caller,’ would generally, before the machinery was started, call out ‘Ready-work,’ or ‘I am going to start,’ an that on the occasion when the defendant in error was injured this employé did not so call out to the workmen. We do not think it was error reversible in character to admit the testimony that the foreman or caller generally called out that work was about to begin or that the machinery was about to be started. The testimony was not received for the purpose of showing that the defendant in error had the right to rely upon such action on the part of the caller, as the basis for a charge of negligence, because of the omission to take such action on the day the defendant in error was injured. Such action on the part of this caller or foreman was not in obedience to any direction or command of the plaintiff in error company, but was simply voluntary upon his part. The purpose to be attained by the course frequently or generally pursued by the caller or foreman was to notify the employés that the hour had arrived to begin work, in order that all workmen should be ready and at their places when the machinery should begin to move. Incidentally, it might serve to advise workmen to beware of any danger that would attend upon the movement of the machinery. The admission of the proof was, therefore, not improper for consideration as bearing on the question whether the defendant in error, on the occasion, was in the exercise of ordinary care for his own safety. Furthermore, the charge of negligence in the declaration, that the plaintiff in error ‘failed to provide any means of warning for the plaintiff when said machinery was about to be put in motion,’ is broad enough to include a charge that the plaintiff in error did not, on the day in question, provide any means for giving the...