Iroquois Furnace Co. v. McCrea

• Citation: 191 Ill. 340,61 N.E. 79
• Parties: IROQUOIS FURNACE CO. v. McCREA.
• Decision Date: 19 June 1901
• Court: Supreme Court of Illinois

191 Ill. 340

61 N.E. 79

IROQUOIS FURNACE CO.

v.McCREA.¹

Supreme Court of Illinois.

June 19, 1901.

Appeal from appellate court, First district. Action by James McCrea against the Iroquois Furnace Company. From judgment of the appellate court (91 Ill. App. 337) affirming a judgment for plaintiff, defendant appeals. Affirmed.

The following statement of facts in this case is made by the appellate court: ‘This is an action to recover damages for personal injuries sustained by appellee, as is charged, through negligence of appellant. Appellee was employed as night foreman of appellant, a corporation engaged in conducting an iron foundry. The work of appellee consisted in part in superintending the removal of cinders and refuse from the furnaces to a dump pile. The evidence tends to show that this dump pile was from time to time reduced by removal of wagon loads of the cinders and refuse from it during the daytime. Such removals left the pile with a sloping surface, sloping from its top usually at an angle of about sixty degrees. Just prior to the injury in question there had been an unusual amount of the contents of the pile removed during the daytime, which resulted in leaving the pile with a sharp edge, presenting a perpendicular wall of about nine feet, instead of a sloping bank. This change was made by daytime, and there is evidence tending to show that it was effected within a day or two prior to the injury. There is no evidence that appellee was informed, when he came on for his night work, of these changes which had been made in the daytime. Appellee testified that he was unaware of the change. Upon the night of the injury it became the duty of appellee to direct one Flinn, an extra man employed by the appellant, to work wheeling cinders from the furnaces to the dump. Flinn came to appellee, and stated that it was too dark to work without a light. Appellee started to go with Flinn to see if it was practicable to work about the dump without a light. The appellant company furnished torches to its employés, but at this time all the torches were in use, and there was none which appellee could take for his own use, or to furnish to Flinn, without depriving some other workman of his light. Appellee and Flinn went without a torch or other light towards the dump pile, and, as they proceeded in the dark, appellee fell over the edge of a sharp declivity, and was injured. The injury consisted of a broken leg, which united, leaving the ankle enlarged and stiffened. The evidence tended to show a permanent lameness.’ The trial in the circuit court resulted in verdict and judgment in favor of appellee for $5,000. From this judgment an appeal was taken to the appellate court, and the appellate court has affirmed the judgment of the circuit court. The present appeal is prosecuted from such judgment of affirmance.

Wilkin, C. J., and Cartwright, J., dissenting.Wall & Ross (Percy Werner, of counsel), for appellant.

King & Gross (Andrew J. Hirschl, of counsel), for appellee.

PER CURIAM.

The questions whether the appellant was guilty of negligence which produced the injury, and whether the appellee was guilty of contributory negligence, and whether or not the damages assessed were excessive, are all questions of fact. These, and all the other questions of fact in the case, are settled by the judgments of the lower courts. In disposing of the other questions involved, the appellate court in its decision expressed the following views:

‘We are of opinion that the action of appellee cannot be said to constitute negligence per se. * * *

‘The evidence as to demanding more torches from the assistant superintendent was not objected to, and evidence of the fact that there was no light and no torch not in use when appellee went out with Flinn was competent, not to establish negligence of appellant in failing to furnish one, for such negligence was not pleaded, but as bearing upon the reasonable care of appellee.

‘The court did not err in excluding the photograph offered in evidence, for it did not appear that it was a correct representation of the dump pile as it was at or prior to the time of the injury. If it were desired to present a photograph of the boilers only, one should have been prepared which was not likely to mislead by showing also the dump pile as it was a year after the time in question.

‘The following instruction was presented to the court by counsel for appellant: ‘The court instructs you that if you believe from the evidence that the plaintiff knew of the removal of the dirt and débris from the dump pile, or by the exercise of ordinary care could have known of the removal of dirt and débris from the dump pile, and if the jury also believe from the evidence that the plaintiff failed to exercise ordinary care in going out to the place where he was injured in the nighttime, then your verdict must be for the defendant.’ The court modified this instruction by inserting the words, ‘at or near the place where plaintiff fell,’ after the words ‘dump pile.’ This modification is complained of as error. The instruction, taken altogether, stated a correct proposition as tendered, and it was equally correct as modified. We are of opinion that the modification did not impose upon it any limitations which were prejudicial to appellant. Without its last hypothesis the instruction would in either case, as tendered or as modified, be bad. It would not follow, because appellee knew of some removals from the pile which always left it with a gradually sloping bank, that, therefore, he was to be charged with notice of a new departure, by which the slope was changed into a sheer descent of nine feet. The words, ‘at or near the place where plaintiff fell,’ would, in their natural and reasonable application, cover any evidence which was introduced showing any knowledge of appellee of prior removals.

‘The following instruction also was tendered by counsel for appellant: ‘The court instructs you that there are no allegations in the declaration that the defendant was guilty of negligence in failing to furnish the plaintiff lights at the time and place where he was injured, and therefore you will disregard all testimony pertaining to the question of lights, and, unless you find the defendant is guilty of negligence as charged in the declaration, your verdict must be for the defendant The court modified this instruction so that it read as follows: ‘The court instructs you there are no allegations in the declaration that the defendant was guilty of negligence in failing to furnish the plaintiff lights at the time and place he was injured, and therefore you should not find the defendant guilty of negligence in regard to the furnishing of light, or base your verdict upon any claimed want of light or torches, and, unless you find the defendant is guilty of negligence as charged in the declaration, your verdict must be for the defendant.’ This modification is assigned as error. We are of opinion that the instruction as tendered was bad, and that the modification by the court made it a proper instruction. The evidence referred to was competent to be considered upon the question of the care exercised by appellee. It was not competent as showing negligence of appellant, for such negligence was not alleged, and to that extent the instruction as modified properly excluded it.

‘It is complained that the court erred in permitting counsel for appellee to question certain jurors upon their voir dire as to their interest in the Union Casualty Company. It appears that an attorney, representing that company, was present with the attorneys for appellant at the trial. The question was proper, at least for the purpose of enabling counsel to exercise their right of peremptory challenge, if for no other purpose. O'Hare v. Railroad Co., 139 Ill. 151, 28 N. E. 923;Bridge Works v. Pereira, 79 Ill. App. 90, and cases therein cited. * * * The judgment is affirmed.’

We concur in the views above expressed by the appellate court, and in the conclusion reached by them. Accordingly, the judgment of the appellate court is affirmed. Judgment affirmed.

WILKIN, C. J., and CARTWRIGHT, J. (dissenting).

At the close of the evidence for the plaintiff, and again at the close of all the evidence, the defendant presented to the court an instruction that the evidence was insufficient to sustain the allegations of the declaration, and that the verdict should be for the defendant, with a request to give it to the jury. The request was refused, and the refusal is assigned as error. The question raised by that assignment is not one of fact, and has not been settled by the judgment of the appellate court, as we have held in numerous cases. The motion to instruct the jury to find for the defendant raised a question of law, reviewable in this court,-whether there was evidence before the jury which, with all the inferences to be fairly drawn from it, would support a verdict for the plaintiff. Offutt v. Exposition, 175 Ill. 472, 51 N. E. 651, and cases cited. The essential facts to be proved by plaintiff were the exercise of ordinary care on his own part, the failure to use a like degree of care by the...