Illinois Steel Co. v. Ziemkowski

• Decision Date: 05 April 1906
• Citation: 220 Ill. 324,77 N.E. 190
• Parties: ILLINOIS STEEL CO. v. ZIEMKOWSKI.
• Court: Illinois Supreme Court

220 Ill. 324

77 N.E. 190

ILLINOIS STEEL CO.

v.ZIEMKOWSKI.

Supreme Court of Illinois.

Feb. 21, 1906.

Rehearing Denied April 5, 1906.

Appeal from Appellate Court, First District.

Action by Andrew Ziemkowski against the Illinois Steel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Knapp, Haynie & Campbell, for appellant.

F. W. Jaros and Francis J. Woolley, for appellee.

WILKIN, J.

This is an appeal from a judgment of the Appellate Court affirming a judgment of the superior court of Cook county in an action on the case by appellee against appellant for a personal injury. The case was tried in the superior court on a second additional count, filed April 9, 1902, and the first and second additional counts, filed December 19, 1902. The second additional count, filed April 9, 1902, alleged, in substance, that the defendant was engaged in the manufacture of various articles of steel, iron, and metals, and had in its plant certain ladles or vessels, with appliances attached thereto, and used by it in said manufacture, and operated various appliances filled with molten metal, slag, or other substances at a dangerously high temperature; that plaintiff was in defendant's employ, engaged in the work assigned to him at or near said ladles, receptacles, or vessels so filled; that it was defendant's duty not to operate said vessels, etc., so filled, without giving plaintiff timely notice or warning of danger then known to defendant, and not known to plaintiff; that defendant disregarded said duty, and so carelessly and negligently operated and managed said vessels, filled as aforesaid, that by said negligent conduct of defendant, and while plaintiff was engaged in defendant's business and in the exercise of due care, said molten metal was violently forced up and spattered and spilled in and around the place where plaintiff was working, and to, upon, and against the left eye of plaintiff, by means whereof said eye was destroyed and plaintiff's other eye was seriously injured, etc. In the first additional count, filed December 19, 1902, it is averred, in substance, after stating the defendant's business, that it used a large receptacle, called a ‘vessel,’ in manufacturing and reducing iron and steel, and that in such use such vessel contained a large amount of iron, steel, slag, etc., in a semiliquid or molten state, at a high temperature, and that as a certain time in the operation of the same particles of iron, steel, and slag, etc., so heated, were apt to and in the ordinary course of business would be thrown and would fly and spatter from said vessel a great distance, to wit, 50 feet, thus endangering the lives and limbs of persons working at or near the same and within said distance, and that at another stage in the operation of such vessel this would not occur; that plaintiff was in defendant's employ, engaged in his work and exercising due care; that it was defendant's duty to warn plaintiff when, in the ordinary course of business, that stage of operation of said vessel was to be reached when said heated particles would be thrown, etc.; that the defendant did not so warn the plaintiff, by reason whereof plaintiff was not aware that said stage of operation was reached, and the said heated particles were hurled and flew from said vessel against plaintiff and into his eye, destroying the same, etc. The second additional count, filed December 19, 1902, contains substantially the same averments as the first filed at said date, and, in addition, the following averments, in substance: That it was defendant's custom to give warning that the stage of operation was about to be reached when said heated particles were about to be thrown, and that a whistle was then blown; that plaintiff knew and relied on said custom for his protection; that it was defendant's duty to so warn plaintiff and to blow said whistle, but defendant, contrary to said custom, did not warn plaintiff or blow said whistle, by reason whereof said substances were hurled, thrown, and struck against plaintiff and into his eye. To these several counts the general issue was pleaded, and the trial by jury resulted in a judgment in favor of the plaintiff for $7,500 and costs. The defendant entered timely and proper motions to instruct the jury to find it not guilty; but the motions were overruled and exceptions duly taken.

The material facts in the case are as follows: The plaintiff below was, at the time of his injury, employed in the steel mill of the defendant near Chicago, and worked in a large brick building in which Bessemer steel was manufactured. In the building there were three large egg-shaped vessels, some 20 feet in length and 10 feet in diameter, swung on pivots at points between their ends, so that they could be turned from an upright to a horizontal position, so as to receive molten metal poured into them. In each of these vessels were 18 pipes, or tuyeres, constructed with small holes at the bottom, so that a blast of air could be forced into the pipes, as was necessary in order to convert the metal into steel. When the air was thus forced in, large quantities or particles of the molten metal and sparks were thrown out in every direction, making it dangerous for employés working near the vessels. This blowing is termed, in the process of making steel, ‘blowing a heat,’ and at the time of the accident from 120 to 125 heats were blown every 12 hours, but at no particular time. The blowing of each heat was controlled by a man named Howe, called the ‘steel blower.’ He occupied a position on a stage or platform a considerable distance from the vessels. It was his duty to blow a whistle located on the platform or stage before each heat was blown, so as to warn the workmen engaged about the vessels and give them an opportunity to get away and escape the danger from the sparks. At the time of the accidentto the plaintiff a heat was turned on while he was near one of the vessels, without the whistle being sounded or any warning whatever given him. The sparks striking him on the back, he suddenly turned around, when a spark or particle of the molten metal struck him in the left eye, completely destroying the sight and otherwise injuring him. Howe, the blower, testified: ‘The mill work, you may say, practically revolved around the blower; everything that went out really depended and revolved about me.’ In fact, it is admitted by counsel for the appellant that the steel blower, from his stage, controlled the vessels in which the steel was blown. The plaintiff was not under his immediate control. His business or employment was to clean certain stoppers which were used in the vessels, and to take care of them by placing them in piles for future use, or, in case they needed repair, carry them to the blacksmith shop. He had worked in the building for a number of years at different employments. For about 10 years his work was to pour the molten metal from ladles into the vessels, but at the end of that time he left the employment of the company, and did not return for several years, when, as already stated, he was employed in cleaning stoppers, etc., which he continued to do until he was injured. At the time he was injured he was some 30 or 40 feet from the blower's stage. At the very time of the accident he was in the act of carrying a stopper rod with the help of another employé. These stoppers were rods of iron weighing from 85 to 125 pounds. He testified that at the time he was stooping down cleaning the stopper and kept hammering with a sledge and chisel, and the first he knew sparks hit him on the neck and head, and he turned and a spark hit him in the eye and on the nose. There is no conflict in the evidence as to the respective duties of the blower and plaintiff. The duties of the former were to superintend and direct the men engaged in the Bessemer process of converting iron into steel, and to give notice, by sounding the whistle, when a...