Connolly v. People's Gaslight & Coke Co.

• Decision Date: 28 October 1913
• Citation: 102 N.E. 1057,260 Ill. 162
• Court: Illinois Supreme Court
• Parties: CONNOLLY v. PEOPLE'S GASLIGHT & COKE CO.

260 Ill. 162

102 N.E. 1057

CONNOLLY

v.PEOPLE'S GASLIGHT & COKE CO.

Supreme Court of Illinois.

Oct. 28, 1913.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Edward M. Mangan, Judge.

Action by John Connolly against the People's Gaslight & Coke Company.A judgment for plaintiff was affirmed by the Appellate Court, First District(177 Ill. App. 543), and defendant appeals.Reversed and remanded.

Sears, Meagher & Whitney, of Chicago, (James F. Meagher, of Chicago, and Edwin Herrick, Jr., of counsel), for appellant.

B. J. Wellman, of Chicago, for appellee.

CARTWRIGHT, J.

This is an appeal granted by the Appellate Court for the First District, in pursuance of a certificate of importance, from a judgment of that court affirming a judgment of the circuit court of Cook county in favor of John Connolly, appellee, against the People's Gaslight & Coke Company, appellant, for damages resulting from a gas pipe falling into a tunnel and striking appellee.

[1] The suit was brought against the People's Gaslight & Coke Company and Leo Smith, and the statement of the Appellate Court that it was brought against that company and one Hartwell, and that the suit against Hartwell was dismissed, is a mistake.The suit was dismissed as to the defendantLeo Smith, but the declaration was not amended and still charged the two defendants jointly.There was a trial by jury, and a verdict finding the remaining defendant guilty and assessing the plaintiff's damages at $2,854.The defendant moved for a new trial, and the plaintiff remitted the sum of $1,854, which was practically two-thirds of the verdict, whereupon the motion for a new trial was denied and judgment was rendered for $1,000.

There were two counts in the declaration, and in each it was alleged that the plaintiff was an employé of the Great Lakes Dredge & Dock Company, and worked near the bottom of the mouth of the Van Buren street tunnel, in Chicago.The charge in the first count was that the defendants negligently allowed and permitted an iron gas pipe to fall down into the tunnel, striking the plaintiff; and the second count alleged that the defendants negligently piled a great pile of iron gas pipe 15 inches from the edge of the tunnel, and because of said negligence a piece thereof was caused to roll and fall off the edge and down into the tunnel and strike the plaintiff.At the close of the evidence the defendants moved the court to direct a verdict of not guilty, and the motion was denied.

There was no difference between the witnesses as to the facts, except as to the precise distance of the gas pipe from the tunnel, and that was immaterial.The defendantGaslight Company was engaged, among other things, in putting in gas fixtures and gas stoves and ovens in buildings in Chicago.F. G. Hartwell did all the teaming and hauling for the defendant under a written contract running for five years, at certain fixed prices per month for double teams, single teams, horses, and buggies, and reserve horses, respectively.The contract contained an agreement that the drivers of the teams should be satisfactory to the defendant; that the teaming should be done in accordance with the directions of such of defendant's superintendents as it might designate, and that the employés of Hartwell should be satisfactory to the superintendents and officers of the defendant at all times and in all respects.The defendant, for the purpose of putting in a gas stove in the building at 233 Market street, ordered some pieces of gas pipe hauled to that place.Leo Smith was one of Hartwell's drivers, and he was directed by the barn boss to go to the defendant's office or yards to do the hauling.Smith went with a horse and wagon in pursuance of that order, and took on his wagon a number of pieces of gas pipe.Charles Dawson was a gas fitter employed by the defendant to do the work.He rode with Smith to the rear of the building at 233 Market street.Back of tbe building there was a paved alley 25 feet wide, and Smith drove into that alley at the south end, turned his horse around, facing south, and stopped the wagon four or five feet from the Van Buren street tunnel, near its east entrance, where it disappears beneath the surface of the ground.When Smith reached the place where the job was to be done, he took the pieces of pipe, eight or ten in number, from the wagon and laid them on the pavement between the wagon and an iron post supporting the railing along the edge of the tunnel.The evidence for the defendant was that the pipe was laid against the wheel of the wagon, several feet from the tunnel, and the declaration alleged that it was 15 inches from the edge of the tunnel.One witness for the plaintiff testified, that the pipe was lying against the iron post connected with the rail at the edge of the tunnel.Market street and the alley run north and south and Van Buren street runs east and west.The tunnel runs east and west across the alley.Whatever the distance, all the evidence showed that the pipe was laid between the wagon wheel and the iron post.There was a vise in the rear end of the wagon, used by the gas fitter in preparing the pipe, and he went upstairs in the building and made an...