James v. Johnson
| Decision Date | 30 November 1882 |
| Citation | 12 Bradw. 286,12 Ill.App. 286 |
| Parties | LORENZO JAMES ET AL.v.ISABEL JOHNSON. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Logan county; the Hon. G. W. HENDERSON, Judge, presiding. Opinion filed January 16, 1883.
Appellee, Mrs. Johnson, hired her boy, thirteen years old, to appellants to pick apples to be made into cider; and after he had been at work a week, appellants, without the consent of his mother, placed him on the platform of a horse-power to drive the team while grinding the apples. After driving a few minutes the boy became dizzy and either fell or attempted to get off, when his foot was caught between the master wheel and the pinion wheel, and so badly crushed as to render amputation necessary. It is averred that the horse power was old, worn, out of repair, unsafe and dangerous, and that the boards on the platform were loose and not sufficient in size to cover the machinery, all of which was known to defendants, whereby they were guilty of gross negligence, and that the boy was injured by reason thereof while in the exercise of due care.
Mr. J. L. BEVAN and Messrs. BLINN & HOBLIT, for appellants; that it was competent for witnesses, who had great experience in the driving and using of horse powers to give their opinion as to the safety of the platform on the horse power, cited 1 Wharton on Ev. § 444, 390-394; Moulton v. McOwen, 103 Mass. 587; Transportation Line v. Hope, 5 Otto, 297.
The trial court has no right to instruct the jury that certain enumerated acts or facts will or will not constitute negligence: Shearman and Redfield on Neg. § 11, pp. 12, 13; G. & C. U. R. R. Co. v. Yarwood, 17 Ill. 509; G. & C. U. R. R. Co. v. Dill, 22 Ill. 264; T. P. & W. R'y Co. v. Foster, 43 Ill. 415; Owen v. Chicago, 10 Bradwell, 465; C. & A. R. R. Co. v. Robinson, 8 Bradwell, 140; Gilman v. Bailey, 7 Bradwell, 349; St. L. A. & T. H. R. R. Co. v. Pflugmacher, 9 Bradwell, 300; Schmidt v. C. & N. W. R'y Co. 83 Ill. 405; Glover v. Gray, 9 Bradwell, 329; Stratton v. Cent. City H. R'y Co. 95 Ill. 25; Penn. Co. v. Conlan, 101 Ill. 93; Great West. R. R. Co. v. Haworth, 39 Ill. 353; C. & A. R. R. Co. v. Pennell, 94 Ill. 448.
When there is a great conflict of testimony, instructions must be clear and accurate: C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. & A. R. R. Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. 550; I. C. R. R. Co. v. Maffitt, 67 Ill. 431; Keyes v. Fuller, 9 Bradwell, 528; Mo. Furnace Co. v. Abend, 9 Bradwell, 319; Kadish v. Bullen, 10 Bradwell, 566; Covert v. Nolan, 10 Bradwell, 629.
An instruction should not assume a disputed fact to be true: Sherman v. Dutch, 16 Ill. 283; Dart v. Horn, 20 Ill. 212; Chicago v. Bixby, 84 Ill. 82; Warren v. Wright, 3 Bradwell, 602; La Salle v. Thorndike, 7 Bradwell, 282; C. & A. R. R. Co. v. Bloomfield, 7 Bradwell, 211; Covert v. Nolan, 10 Bradwell, 629.
Appellee was only entitled to remuneration for the damages she had sustained: Waldron v. Marcier, 82 Ill. 550.
Mr. F. L. CAPPS and Messrs. BEACH & HODNETT, for appellee; that where the facts can be so described as to enable the jury to form a just conclusion from them, a witness is not allowed to testify as to his opinion, cited Hopkins v. I. & St. L. R. R. Co. 78 Ill. 32; Pate v. The People, 3 Gilman, 644; Penn. Co. v. Conlan, 101 Ill. 93; Chicago v. McGiven, 78 Ill. 347.
The damages are not excessive: C. & A. R. R. Co. v. Becker, 84 Ill. 483; C. & A. R. R. Co. v. Delaney, 82 Ill. 198; Chicago West Div. R'y Co. v. Hughes, 69 Ill. 170; C. & A. R. R. Co. v. Gregory, 58 Ill. 226; C. & A. R. R. Co. v. Wilson, 63 Ill. 167; N. L. Packet Co. v. Binninger, 70 Ill. 167.
It was not necessary to prove any damages: Chicago v. Scholten, 75 Ill. 469; Chicago v. Major, 18 Ill. 349; C. & A. R. R. Co. v. Morris, 26 Ill. 346.
Master is bound to provide safe machinery and a safe place to work in: T. P. & W. R. R. Co. v. Fredericks, 71 Ill. 294; C. A. & St. L. R. R. Co. v. Shannon, 43 Ill. 338; Coombs v. N. B. C. Co. 102 Mass. 573; Perry v. Ricketts, 55 Ill. 234; Smith on Master and Servant, 212; Wharton on Neg. § 859.
The law does not impute negligence to an infant of tender years: C. & A. R. R. Co. v. Becker, 84 Ill. 483; Kerr v. Forgue, 54 Ill. 482; C. & A. R. R. Co. v. Gregory, 58 Ill. 226; C. & A. R. R. Co. v. Murray, 71 Ill. 601; Weick v. Lander, 75 Ill. 93. Where servant is ordered to do work more hazardous than his usual labor and is injured thereby, the master is liable: Lalor v. C. B. & Q. R. R. Co. 52 Ill. 401; Fairbanks v. Haeutzche, 73 Ill. 236.
Master can recover for injury to servant, whereby he has lost his services: Ames v. U. R. R. Co. 117 Mass. 541; Alton v. Midland R'y Co. 19 C. B. (U. S.) 213; 2 Addison on Torts, § 1293; 1 Hill on Torts, 62, Vol. 2, 479.
Instructions when correct as a series, are sufficient: T. P. & W. R'y Co. v. Ingraham, 77 Ill. 309; N. L. Packet Co. v. Binninger, 70 Ill. 571; Yundt v. Hartunft, 41 Ill. 9; I. C. R. R. Co. v. Swearengen, 47 Ill. 206; Vinegar Hill v. Busson, 42 Ill. 45; Durham v. Goodwin, 54 Ill. 469; Stowell v. Beagle, 79 Ill. 525.
Instructions did not take away question of negligence from jury: O. & M. R'y Co. v. Porter, 92 Ill. 438.
The giving of erroneous instructions will not be error, where evidence clearly shows verdict was right: Hall v. Stroufe, 52 Ill. 421.
Appellee recovered a judgment against appellants in the court below for alleged negligence in placing her son on an unsafe and dangerous platform of a horse power, to drive the horses, from which he fell and received the injury complained of.
Numerous objections are urged in argument against the rulings of the trial court.
First. It is claimed the court erred in sustaining appellee's objection to the following question propounded to two of appellant's witnesses, Wm. Cisco and W. A. Jones, and refusing to permit them to answer the same:
“From your experience in running and handling horse powers like this one, I will ask you to state whether in your opinion the platform in this power was a safe or an unsafe place for a boy of ordinary intelligence and prudence, twelve to thirteen years of age, to work upon in driving two horses hitched thereto?”
These witnesses had testified that they had been engaged in using horse powers of this kind for at least fourteen years and that they had had a large experience in the use of such machines. This knowledge of the business entitled the witnesses to testify as experts. They were familiar with the subject and possessed knowledge in reference thereto not possessed by the jury or persons in general. It is not necessary that a specialty, to enable one acquainted with it to be examined as an expert, should involve abstruse questions of science. If the witness is possessed of a special knowledge of a subject of which the jury are not able to judge for themselves, he is competent to testify, and it is not a valid objection to his evidence that the question involves the point at issue to be decided by the jury. Wharton on Evidence, Sec. 444. Transportation Co. v. Hope, 5 Otto. 299; Moulton v. McOwen, 103 Mass. 587.
Again, appellee's witnesses, Lucky and Markland had...
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