Consol. Ice Mach. Co. v. Keifer

• Court: Supreme Court of Illinois
• Citation: 134 Ill. 481,25 N.E. 799
• Parties: CONSOLIDATED ICE MACHINE CO. et al. v. KEIFER.
• Decision Date: 05 November 1890

134 Ill. 481

25 N.E. 799

CONSOLIDATED ICE MACHINE CO. et al.

v.KEIFER.¹

Supreme Court of Illinois.

Nov. 5, 1890.

Appeal from appellate court, fourth district.

M. Millard

, for appellant brewing company.

Leo Rassieur and W. C. Kueffner, for appellant ice machine company.

Flannigan & Rafter, (G. B. Burnett and R. A. Halbert, of counsel,) for appellee.

This was an action on the case brought by Anton Keifer, administrator of the estate of John Keifer, deceased, against the Consolidated Ice Machine Company and the Heine's Brewing Company, both defendants being private corporations, to recover damages for causing the death of the intestate. The declaration contains two counts, the first of which alleges in substance that on December 28, 1886, the intestate was, with other persons, in the employ of the defendant the ice machine company as a laborer in the erection of a refrigerator plant at the brewery of the defendant, the Heine's Brewing Company, and, in the performance of his duties as such laborer, and by the direction of the officers and servants of the defendants, he was required to go upon the roof of the engine-house of said brewery, upon which was erected a large tank of great weight, and which was a part of said refrigerator plant, and which tank was supported by beams and a chain called a ‘hog chain;’ and that it then and there became and was the duty of said defendants to exercise care and prudence in providing supports for said tank so that the same should not give way and fall and produce injury to persons engaged in working in the erection of said refrigerator plant, but that said defendants neglected their duty in this regard, and negligently and carelessly failed to provide supports of sufficient strength to support said tank, and while the said John Keifer was upon the roof of said engine-house, as aforesaid, and in the exercise of due care on his part, and without knowledge as to the insufficiency of said supports for said tank, because of the insufficiency of said support, said tank gave way and fell, taking with it a portion of the roof of said engine-house upon which the said John Keifer was standing at the time, as aforesaid, precipitating said John Keifer into said engine-house, whereby he was then, etc., killed. The second count alleges, in substance, that the intestate, with others, was in the employ of the said Consolidated Ice Machine Company as a laborer in the erection of a refrigerator plant at the brewery of the defendant, said Heine's Brewing Company, and, at the request of said Heine's Brewing Company, and as such laborer, and by the direction of the officers and servants of said Consolidated Ice Machine Company, he, the said John Keifer was directed to go upon the roof of the engine-house at said brewery, upon which was erected a large tank of great weight, and which was a part of said refrigerator plant, and which tank was supported by beams, and a chain called a ‘hog chain.’ And the plaintiff avers that said support for said tank was provided and erected by said defendant, the Heine's Brewing Company, and it then and there became and was the duty of said last-named defendant to exercise care and prudence in providing supports for said tank; and it then and there became and was the duty of said ice machine company not to undertake the erection of said refrigerator plant upon insufficient supports for the same, and to exercise care and prudence in seeing that said supports were sufficient to support said tank before undertaking the erection of said refrigerator plant, so that the same would not give way and fall, and produce injury to persons engaged in the erection of such plant. But that said defendants neglected their duties in this regard, in this: the said Heine's Brewing Company, negligently and carelessly failed to provide supports of sufficient strength to support said tank; and that the ice machine company negligently and carelessly undertook and attempted the erection of said refrigerator plant when it knew, or might have known, by the exercise of ordinary care and prudence, that the supports of said tank were wholly insufficient, and while the said John Keifer was upon the roof of said engine-house, as aforesaid, etc.,-concluding as in the first count. Each defendant pleaded the general issue, and, at the April term, 1887, the cause was tried before a jury, who returned a verdict finding both defendants guilty, and assessing the plaintiff's damages at $2,500. The court overruled motions for a new trial, and rendered judgment on the verdict. Separate appeals were prayed to the appellate court and allowed. The appellate court affirmed the judgment, and each of the defendants appealed from such judgment of affirmance.

SHOPE, J., ( after stating the facts as above.)

The judgment of affirmance rendered by the appellate court is conclusive upon all questions of fact. It must be presumed that the facts were found to be sufficient to maintain the plaintiff's cause of action against each of the defendants, and that the negligent conduct of each contributed to the death of the intestate.

The principal question arises upon objection to the first instruction given at the instance of plaintoff. That instruction told the jury in effect that if the evidence warranted they might find either or both of the defendants guilty, and was, as said by counsel, ‘based upon the supposition that there was a joint liability.’ It is insisted with great earnestness that these defendants could not be jointly liable, because, as it is said, they did not co-operate and unite in the commission of a tort, and, in respect of their negligence, that the brewing company owed the deceased no duty; and that, where negligence is relied upon as the ground of recovery, the duty must be joint in order to make the liability joint. If this was so, it would necessarily be presumed from the judgment of affirmance that the facts sustained the right of recovery. Upon looking into the evidence, however, it will be found that it sustains the allegations of the declaration. It is shown that the ice machine company undertook to erect a refrigerator plant for the brewing company, at its brewery, which included a large iron tank. The brewing company was to fix the location for the plant, and make, and put in, proper supports for the tank. It selected its engine-room for this purpose, and the iron tank was to be set upon supports 18 or 20 feet from the ground. To do this, part of the roof of the engine-house was cut away, and one side of the tank was to rest upon one wall of the engine-room, and the other was supported by a truss made of two wooden beams, 14 inches wide and 7 inches thick, 24 feet long, bolted together, and these beams were further strengthened by a hog chain. The hog chain consisted of two iron rods, anchored, one in the north and the other in the south wall of the engine-room, and joined together in the center of the supporting beams by a swivel. Timbers were laid from this truss to and upon the east wall of the engine-house, and upon this structure the iron tank was placed, extending three feet over the beam, so that the greater portion of the weight of the tank rested upon the truss. It is shown that, when the truss was completed, the superintendent of the ice machine company told the president of the brewing company that it was insufficient and never would support the tank, who replied, in substance, that it would do. Without further objection, the ice machine companyplaced the tank on the support, as intended by the brewing company. After the tank was up, the superintendent of the ice machine company directed the intestate, with others, to go upon the roof of the engine-house and fit in it the heater. The tank was at the time being filled with water, and while the intestate was on the roof, in compliance with such direction, the truss gave way, and the tank fell, taking with it part of the roof of the engine-house, and precipitating Keifer to the floor of the engine-room, whereby he was killed.

Under the state of facts alleged and shown it was the duty of each of the defendants in the performance of their several parts of the work, to use reasonable care to aboid injury to the servants of either, and to third persons. If Dennerty, the superintendent of the ice machine company, knew, as he told Heine, that the truss provided by the brewing company would not support the...