Dunham Towing & Wrecking Co. v. Daudelin

• Decision Date: 31 October 1892
• Citation: 143 Ill. 409,32 N.E. 258
• Court: Illinois Supreme Court
• Parties: DUNHAM TOWING & WRECKING CO. et al. v. DAUDELIN.

143 Ill. 409

32 N.E. 258

DUNHAM TOWING & WRECKING CO. et al.

v.DAUDELIN.¹

Supreme Court of Illinois.

Oct. 31, 1892.

Appeal from appellate court, first district.

Action on the case by Emily Daudelin, administratrix of Joseph Daudelin, against the Dunham Towing & Wrecking Company and O. E. Larson. Plaintiff obtained judgment against the company, which was affirmed by the appellate court. 41 Ill. App. 175. The company appeals. Affirmed.

Robert Rae and Gurley & Wood, for appellant.

S. B. Foster and E. J. McArdle, for appellee.

BAKER, J.

This suit was brought by Emily Daudelin, administratrix of Joseph Daudelin, deceased, against the Dunham Towing & Wrecking Company, appellant herein, and against one O. E. Larson, owner of the schooner Lookout, to recover damages for causing the death of her intestate through their negligence. The results of a jury trial in the circuit court of Cook county were verdict and judgment in her favor against the appellant, and the judgment was affirmed by the appellate court.

The Santa Fe slip is a body of water connected with and extending from the south branch of the Chicago river. It is of a uniform width of 150 feet, except near its junction with the river, where it widens considerably. On the east side of the slip, and extending from a point near the river bank, is the Santa Fe elevator. On the west side of the elevator, which is the side next to the slip, are nine chutes, about 30 feet high, by which grain is loaded into vessels. On the 28th day of May, 1889. Joseph Daudelin and his brother Felix were at work repairing the cast-iron hoods that cover the upper ends of the chutes; and they had been so employed for several days prior to that date. It is 12 feet from the dock line to the side of the elevator, and while at work Joseph Daudelin and his brother stood upon a scaffold which was about 28 feet above the dock, and hung below the hoods, and was fastened with ropes which hung from windows about 64 feet above such scaffold. At the time of the accident they were working at chute No. 8, the second chute from the north end of the elevator. The appellant, a corporation engaged in the business of towing and wrecking, was the owner of the tug Robbie Dunham, the crew of which, at the time of the transactions here involved, were endeavoring with the tug to take the schooner Lookout out of the slip. The water on the west side of the slip where the schooner was moored was so shallow that the tug could not get alongside of her, and the schooner was connected with the tug by a line some 100 or 125 feet long, one end of which was fastened to the stern of the schooner and the other to the tug. The tug then gave the schooner a pull for the purpose of getting her into deeper water, the intention being to afterwards make fast the tug alongside the schooner, and thus give the former full control of the latter. The pull that was made was not only sufficient to get the schooner into deep enough water, but to give to her a considerable degree of headway or impetus, and immediately after such pull the tug dropped the stern line, and thereupon, the wind blowing briskly from the east, the stern of the Lookout began to swing towards the west, and the bow towards the east and towards the elevator. Before the tug could make fast to the schooner by the bowline and shove the stern of the schooner in towards the elevator, thereby swinging her bow out and away from the elevator, the guy rope leading from the end of the jib boom to the mast of the schooner caught the corner of the scaffold upon which Joseph Daudelin and his brother were standing, and at or about the same instant the jib boom struck the side of the elevator and the chute. The jib boom was broken, so that it fell away, the spout from the elevator was turned around, the scaffold was partly wrecked, the south end of the scaffold was shoved under the hood, and Joseph Daudelin fell to the dock below, and was killed by the fall. The evidence shows that immediately before the accident Joseph Daudelin had hold of the rope which supported the south end of the scaffold, and tends to show that at the time of the contact he let go the hold of either one or both hands on the scaffold rope, and either seized or pushed or shoved the jib boom stay of the Lookout.

Counsel for the appellant, in their brief filed in this court, strenuously insist that the evidence does not show that the appellant corporation was guilty of culpable negligence, and that, even if it does, it also shows such want of ordinary care and such contributory negligence on the part of the deceased as will prevent his administratrix from recovering damages on account of his death. These are both questions of fact that were conclusively settled in favor of appellee by the judgments of the trial and the appellate courts. This court, in a suit such as this, will review the evidence only when such steps are taken in the trial court as give us the power and impose upon us the duty of making such a review. It is true that at the close of the case made by the plaintiff below the appellant entered a motion that the evidence be excluded from the jury, and that they be instructed to find a verdict in its favor. But that motion was denied, and appellant then introduced testimony to overcome that which had been produced by the plaintiff, and, after the introduction of its own testimony, it did not renew its motion to exclude evidence, nor ask the court to instruct the jury to return a verdict finding the issues for it, the appellant. The late case of Railway Co. v. Velie, (Ill. Sup.) 29 N. E. Rep. 706, is, in this regard, on all fours with this, and is conclusive that on this appeal the question whether, as matter of law, the evidence is sufficient to establish a cause of action or justify a recovery, does not arise.

It appears from the record that at the trial, when the plaintiff below rested her case, the defendant Larson moved that the evidence be...