Keeran v. Peoria

• Decision Date: 06 April 1917
• Docket Number: No. 11152.,11152.
• Citation: 277 Ill. 413,115 N.E. 636
• Court: Illinois Supreme Court
• Parties: KEERAN v. PEORIA, BLOOMINGTON & CHAMPAIGN TRACTION CO.

277 Ill. 413

115 N.E. 636

KEERAN

v.PEORIA, BLOOMINGTON & CHAMPAIGN TRACTION CO.

No. 11152.

Supreme Court of Illinois.

Feb. 21, 1917.

Rehearing Denied April 6, 1917.

Appeal from Circuit Court, McLean County; Sain Welty, Judge.

Action by Emma Keeran, administratrix of estate of James A. Keeran, deceased, against the Peoria, Bloomington & Champaign Traction Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.Jesse E. Hoffman, of Bloomington, for appellant.

Livingston & Bach, of Bloomington (Sigmund Livingston, of Bloomington, of counsel), for appellee.

DUNN, J.

Emma Keeran, as administratrix of the estate of James A. Keeran, deceased, began an action on the case against the Peoria, Bloomington & Champaign Traction Company to recover damages by reason of the death of her decedent, caused by the negligence of the defendant. The declaration alleged that the decedent was crossing the railway tracks of the defendant at Stillwell street, in Bloomington, Ill., where there was a railroad grade through which the defendant's cars passed through a subway beneath the railroad track, which grade prevented the users of Stillwell street from seeing the approach of the defendant's car from the east, and at the time a railroad train crossing the subway was making noise and confusion which prevented the users of the street from hearing any whistle or bell that might have been sounded, and that the decedent, while attempting to cross the interurban track at that time and place, and using due care for his own safety, was struck and killed by an interurban car which the defendant was then and there running at a high and dangerous rate of speed. Beside the general issue the defendant filed three special pleas, to which the plaintiff filed demurrers, which were overruled. Judgment was rendered against the plaintiff, and she appealed.

The first special plea averred that at the time of the injury to the plaintiff's intestate he was in the employ of Mandel & Schwarzman, a copartnership, and the injury was caused to him while he was engaged in the line of his duty as such employé; that neither the decedent nor Mandel & Schwarzman had given notice of their election to be bound or not to be bound by the Workmen's Compensation Act, but the defendant had given notice to be bound by such act, and that Mandel & Schwarzman were bound by the act because they were engaged in an enterprise and business in which statutory and municipal ordinance regulations were then imposed for the regulation, guarding, use, and placing of machinery or appliances or protecting and safeguarding the employés or the public therein; that the same was an extrahazardous occupation, enterprise, and business because that firm operated both a freight elevator and a passenger elevator running from the basement to the fourth floor of the building; also a machine for grinding coffee, sewing machines, a meat grinder, and two carrier systems, all operated by electrical power and all located in their business house, where, in addition, they maintained, for the purpose of operating such machinery, a system of electrical wiring or transmission, with dynamos and other electrical apparatus and appliances; that in said business they chopped and ground meat, repaired, remodeled, and refitted wearing apparel, ground coffee, and sold and delivered general merchandisein the city of Bloomington, and that such business came within the provisions of the Workmen's Compensation Act and within the operation of a city ordinance of the city of Bloomington which specified that hoistway openings should have trapdoors with sufficient guards, etc., which doors shall be kept closed, etc., and of a city ordinance requiring hoistways of elevators to have fireproof shafts constructed and protected as detailed in said ordinance, and of an ordinance requiring all doors in shafts of elevators to have latches, so that they could not be opened from the outside, and to be constructed in a certain way.

The second plea alleged that the decedent was in the employ of George Agle & Sons, a copartnership, and that neither he nor his employers had given notice of their acceptance or rejection of the Workmen's Compensation Act, but that the defendant had accepted the act, and that the decedent and his employers were bound by the act by reason of the nature of the employers' business; that the employers in their business operated a gas engine, a centrifugal steam pump, an endless chain ice elevator conveyor, a 25 horse power boiler carrying about 100 pounds steam pressure, and an Atlas steam engine of about 25 horse power in their business of making and storing ice, for grinding cereals and grain, for hoisting and elevating, for storage, grain, hides, fats, cereals, and other commodities which they bought and sold, which machinery was operated by steam power and gas power, among which were drums, cogs, gearing, belting, shafting, flywheels, vats and other machinery used in the business; and that such business came under the act to provide for the health, safety and comfort of employés in factories, etc. Laws of 1915, p. 418.

The third plea alleged that the decedent was in the employ of both Mandel & Schwarzman and George Agle & Sons, and alleged the same facts as the other two pleas in regard to the business of each of them.

The pleas are founded on sections 6 and 29 of the Workmen's Compensation Act (Laws 1913, pp. 340, 354), which are as follows:

‘Sec. 6. No common-law or statutory right to recover damages for injury or death sustained by any employé while engaged in the line of his duty as such employé other than the compensation herein provided shall be available to any employé who is covered by the provisions of this act, to anyone wholly or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury.’

‘Sec. 29. Where an injury or death for which compensation is payable by the employer under this act was not proximately caused by the negligence of the employer or his employés, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this act, then the right of the employé or personal representative to recover against such other person shall be subrogated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this act, by reason of the injury or death of such employé. Where the injury or death for which compensation is payable under this act was not proximately caused by the negligence of the employer or his employés and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer's payment of or liability to pay compensation under this act, but in such case if the action against such other person is brought by the injured employé or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employé or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employé or personal representative: Provided, that if the injured employé or his personal representative shall agree to receive compensation from the employer or to institute proceedings to recover the same or accept from the employer any payment on account of such compensation, such employer shall be subrogated to all the rights of such employé or personal representative and may maintain, or in case an action has already been instituted, may continue an action either in the name of the employé or personal representative or in his own name against such other person for a recovery of damages to which but for this section the said employé or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employé or personal representative all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this act and all costs, attorneys' fees and reasonable expenses incurred by such employer in making such collection and enforcing such liability.’

The appellant contends that the provision of section 6 that no common-law or statutory right to recover damages shall be available to any employé within the provisions of the act, or to any one dependent upon him, or to his legal representatives, applies only...