Klofski v. R.R. Supply Co.

• Decision Date: 18 June 1908
• Citation: 235 Ill. 146,85 N.E. 274
• Parties: KLOFSKI v. RAILROAD SUPPLY CO.
• Court: Illinois Supreme Court

235 Ill. 146

85 N.E. 274

KLOFSKI

v.RAILROAD SUPPLY CO.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, First District; on appeal from Superior Court, Cook County; G. A. Dupuy, Judge.

Action by Adolph Klofski against the Railroad Supply Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals.F. J. Canty, J. C. M. Clow, and E. E. Gray (H. E. Long, of counsel), for appellant.

F. W. Jaros (Francis J. Woolley, of counsel), for appellee.

VICKERS, J.

Adolph Klofski recovered a judgment in the superior court of Cook county for $2,541 for personal injuries sustained by him while in the employ of the Railroad Supply Company. The Railroad Supply Company was engaged in the foundry business, and manufactured metal castings of various kinds. Klofski was a moulder, whose business was to carry ladles filled with molten metal from the furnace and pour it into moulds. There were 60 moulders engaged in the same business with Klofski. The business was carried on in a large brick building about 300 feet long by 100 feet wide. The moulders would stand in two diverging lines from the furnace, and each one in regular turn would secure a ladle of metal and pass out to his moulds, when the moulder immediately next in line would place his ladle under the spout where the molten metal was coming down, and, when his ladle was full, he would immediately withdraw and the next man in turn would take his place at the spout. Klofski was standingin line awaiting his turn to fill his ladle, when another moulder by the name of ‘Scotty,’ while passing near Klofski on his way to his moulds, tripped and fell and the molten metal in his ladle was thrown upon the person of Klofski, burning him very severly.

The declaration contains two counts. The first count alleges that it was the duty of defendant to keep the floor over which the moulders were required to pass even, clear of obstacles, and in a safe condition, so that the plaintiff and the other servants of defendant could work there in safety. This count charges that appellant carelessly and negligently kept the floor uneven, with holes in it and obstructed with various iron articles, so as to endanger the safety of those employed therein while in the discharge of their duties, and carelessly and negligently failed to furnish the employés a safe place to work, all of which it is charged was known, or ought to have been known, to appellant and unknown to appellee, and that, by reason of the careless and negligent conduct of the appellant aforesaid, the appellee, while in the exercise of due care for his own safety, was injured by reason of a certain other servant tripping and falling upon the floor, thereby causing the metal then being carried by such other servant to spill upon the ground and explode, whereby the metal was thrown against appellee, inflicting the injuries of which he complains. The second count in the declaration alleges that appellant carelessly and negligently employed an incompetent, careless, and reckless servant and permitted such incompetent servant to operate and manage ladles filled with molten metal; that such incompetency of the said servant was, or ought to have been, known to appellant and was unknown to appellee, by means whereof the appellee was injured, as aforesaid, through the incompetency, recklessness, and carelessness of said servant of appellant. The gist of the second count of the declaration is that appellant, with notice, negligently employed an incompetent servant to handle a ladle full of molten metal, by means whereof the appellant, by its said servant, carelessly caused the said metal to spill upon the ground and explode against the appellee. At the close of appellee's evidence appellant made its motion to direct a verdict in its favor as to each count of the declaration, and submitted a written instruction for that purpose. This motion was denied. Thereupon appellant introduced its evidence, and at the close of all the evidence appellant again made a motion for a directed verdict as to each count, but submitted no written instruction for that purpose. Appellant's motion was again denied, and the case was submitted to the jury. A verdict for $2,541 in favor of appellee was returned by the jury. The judgment rendered thereon has been affirmed by the Appellate Court for the First District.

Appellant's first contention is that the court erred in refusing to direct a verdict in its favor. There was no error in this ruling. The evidence fairly tended to establish the first count, and the second count was established by very satisfactory proof. Appellant's principal contention in support of this point is that it was entitled to have the first count excluded from the jury, even if it be conceded that the second count was good and well supported by the proof. Where a declaration consists of more than one count, and some of the counts fail to state a cause of action or are unsupported by any evidence fairly tending to prove them, it is proper practice for the trial court, when asked to do so, to withdraw such defective or unsupported counts from the consideration of the jury; but the refusal of the trial court to so withdraw such defective or unproven counts from the consideration of the jury is no reason for reversing the judgment when there are other proven counts in the declaration sufficient to sustain the verdict. Section 78 of the new practice act (Laws 1907, p. 459) provides that, when an entire verdict shall be given on several counts, the same shall not be set aside or reversed on the ground of any defective count if one or more of the counts in the declaration be sufficient to sustain the verdict. A similar provision is found in section 57 of the old practice act (Hurd's Rev. St. 1905, c. 110, § 58). Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876;Chicago & Alton Railroad Co. v. Harbur, 180 Ill. 394, 54 N. E. 327;Swift & Co. v. Rutkowski, 182 Ill. 18, 54 N. E. 1038. Appellant did not demur to the declaration or either count thereof. By pleading the general issue the sufficiency of the declaration was admitted. If appellant had desired to question the sufficiency of the declaration, or either count thereof, it should have demurred; and, if its demurrer had been overruled, appellant should have abided by its demurrer in order to preserve the sufficiency of the declaration as a question of law for review. A motion to exclude evidence at the close of a trial is not the proper method of questioning the legal sufficiency of the declaration as a pleading. We are not aware of any practice that would sanction such course. On the contrary, this court has decided that a motion to direct a verdict does not raise the question as to the sufficiency of the declaration. Swift & Co. v. Rutkowski, supra. In that case, on page 23 of 182 Ill.,page 1040 of 54 N. E., this court said: ‘To the suggestion the declaration was fatally defective and the motion to exclude the evidence should therefore have been sustained, it is sufficient to say that the defendant, by pleading to the merits, admitted the sufficiency of the declaration, and it is not readily perceived how its sufficiency could be subsequently raised by a mere motion to exclude the evidence from the jury. We are aware of no practice authorizing such course. If the defendant desired to question the sufficiency of the declaration, it should have demurred or moved in arrest of judgment’-citing Chicago, Burlington & Quincy Railroad Co. v. Harwood, 90 Ill. 425;Roberts v. Corby, 86 Ill. 182.

The bill of exceptions contains a recital that appellant, ‘by its counsel, made a motion in arrest of judgment, but the court overruled and denied said motion, to which rulingof the court the defendant, by its counsel, then and there duly excepted.’ If it be said that the motion in arrest of judgment saved the question as to the sufficiency of the first count of the declaration, a sufficient answer thereto is that a motion in arrest of judgment cannot be sustained on the ground that some of the counts of the declaration are defective when there are other counts in the declaration sufficient to sustain the judgment. Baltimore & Ohio Southwestern Railway Co. v. Alsop, 176 Ill. 471, 52 N. E. 253, 732. Appellant has made an extended argument and cited a number of authorities to show that the first count in the declaration is fatally defective, and this argument and these authorities would require our consideration if we were considering the sufficiency of the first count when tested by a demurrer; but, since appellant elected to plead to this count and proceed to a trial of an issue of fact, the argument made and the authorities cited do not require our consideration, since the question to which they relate is not properly preserved for review.

Appellant's next contention is that appellee assumed the risk of injury from the acts of negligence alleged in both counts of the declaration. The negligence alleged in the first count, as already shown, is the failure of appellant to provide appellee with a reasonably safe place in which to work. The alleged violation of this duty relates to the condition in which the floor of the foundry building was maintained. It is shown that Scotty, the servant who tripped and fell, tripped on a rod of iron which was lying near the edge of a hole, five or six inches deep, in the floor. The contention is that the rod of iron and the hole, as well as all other obstacles on the floor, were open and obvious and in plain view of all the moulders. The evidence tends to show that these obstructions had been on the floor for several months. Appellee had worked around this furnace for about five months, and under these circumstances it is not unreasonable to assume that he had become familiar with the condition of the floor. The opportunities for all the moulders to become familiar with the condition of the floor...