Ide v. Fratcher
| Decision Date | 21 February 1902 |
| Citation | 62 N.E. 814,194 Ill. 552 |
| Parties | IDE et al. v. FRATCHER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, Third district.
Action by Caroline Fratcher, as administratrix of the estate of August Fratcher, deceased, against Harry L. Ide and others. From a judgment of the appellate court (96 Ill. App. 549), affirming a judgment in favor of plaintiff, defendants appeal. Affirmed.Henry B. Bale, S. H. Cummins, and Cox, Heldman & Shortle, for appellants.
James M. Graham, for appellee.
This is an action on the case, brought in the circuit court of Sangamon county by the appellee, as administratrix, against the appellants, to recover damages for negligently causing the death of August Fratcher, her husband.
The declaration contains two counts. The first count charges that on March 23, 1900, the defendants were possessed of and operating a certain machine shop in the city of Springfield, in said county, in which were certain machines and appliances for use in the business of defendants, among which was a certain emery wheel, which was then and there used by the defendants for the purpose of smoothing the surface of steel or iron, and that to accomplish said purpose it was necessary to cause said wheel to revolve at a high rate of speed, to wit, 1,500 revolutions per minute; that said emery wheel was then and there wholly unprotected, uncovered, and without any shield, guard, or hood to prevent the pieces of said wheel flying off in case said wheel broke when revolving; that August Fratcher on said day was in the employ of the defendants as a machinist's helper, and was working in said machine shop, and during said day was required by the person in authority over him to go from where he then was to a certain hydrant in the machine shop for a bucket of water, and that deceased was then and there in the exercise of due care and caution; that it was the duty of defendants to so use, manage, and operate said machine shop and appliances that it would be a reasonably safe place for the deceased to work in; that the defendants, not regarding their duty, did not so use, manage, and operate the machinery and appliances therein that said shop was a reasonably safe place for deceased to work in, but, on the contrary, carelessly and negligently placed therein and maintained and operated said emery wheel without having any guard, hood, or protection of any kind around or about it, and carelessly and negligently caused said emery wheel to run at a high rate of speed, to wit, the rate of 1,500 revolutions per minute, when it was not in use for the purpose for which it was intended or for any purpose, said emery wheel being then cracked and defective, as the defendants then knew, yet the defendants carelessly and negligently permitted said wheel to be run at such high rate of speed; and in consequence thereof, while deceased was working for defendants as aforesaid, and while deceased was crossing said machine shop towards said hydrant, and was in the exercise of due care for his own safety, the said emery wheel, while running at such high rate of speed, burst and broke in pieces because of its defective condition as aforesaid, and the pieces thereof were hurled with great force, and one of them struck deceased, and so injured him that he died. The second count charges the same duty and the same breach, and avers that the emery wheel was cracked and defective, and had been in such condition for three weeks prior to the accident. The defendants pleaded the general issue. A trial resulted in a verdict in favor of appellee for $2,500, upon which verdict, after overruling a motion for a new trial, the court rendered judgment, which judgment has been affirmed by the appellate court for the Third district, and a further appeal has been prosecuted to this court.
At the close of the plaintiff's evidence, and again at the close of all the evidence, the appellants moved the court to withdraw the evidence from the jury, and to instruct them to find for the defendants, which the court declined to do, to which action of the court in that behalf the appellants excepted, and have assigned as error such ruling in this court. The evidence for the appellee tended to show that Fratcher, at the time of the injury, was employed in appellants' shop as a machinist's helper; that several emery wheels were in use at the time; that the one that broke was used by the workmen, including Fratcher, for grinding castings; that on the day of the injury Fratcher was directed by his foreman to carry water and throw it upon the bricks which were being taken down from an inside wall which was being removed from the shop, for the purpose of laying the dust; that, while passing near the wheel to a water faucet, the wheel, while in motion, burst, and he was struck by a piece therefrom and killed; that the wheel was without shield, guard, or hood at the time, and had been cracked and in a defective condition for a considerable time before the accident, and that the appellants had notice thereof. If there is evidence tending to show the plaintiff's right to recover, there must be a submission of the case to the jury. Railway Co. v. Baddeley, 150 Ill. 328, 36 N. E. 965. Where there is evidence which fairly tends to support the plaintiff's case, it must be submitted to the jury. Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285,18 L. R. A. 215. It is well settled in this state that an instruction to find for the defendant should be refused where there is evidence tending to show the plaintiff's right to recover. Landgraf v. Kuh, 188 Ill. 484, ...
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