Libby, McNeill & Libby v. Banks

• Citation: 70 N.E. 599,209 Ill. 109
• Court: Supreme Court of Illinois
• Decision Date: 20 April 1904
• Parties: LIBBY, McNEILL & LIBBY v. BANKS.

209 Ill. 109

70 N.E. 599

LIBBY, McNEILL & LIBBY

v.BANKS.

Supreme Court of Illinois.

April 20, 1904.

Appeal from Appellate Court, First District.

Action by Mary E. Banks against Libby, McNeill & Libby. From a judgment of the Appellate Court (110 Ill. App. 330) affirming a judgment for plaintiff, defendant appeals. Affirmed.

F. J. Canty and R. J. Folonie, for appellant.

Richolson & Levy (C. Stuart Beattie, of counsel), for appellee.

RICKS, J.

This was an action on the case for damages, brought by appellee against appellant for personal injuries sustained by her. The only question arising on this record, except the refusal of one instruction, is whether the trial court erred, at the close of all the evidence, in refusing to give the peremptory instruction asked by appellant, who was the defendant below, directing the jury to find the issues for the defendant. A verdict was returned in favor of appellee. Judgment was entered on the verdict by the trial court, and this judgment, on appeal, was affirmed by the Appellate Court, and a further appeal is prosecuted to this court.

The question before this court to decide, in the court's refusal to grant the peremptory instruction, is one of law, and not one of fact, the motion being in the nature of a demurrer to the evidence; that is, admitting the evidence in favor of the plaintiff to be true, does it, together with all legitimate conclusions which may be drawn therefrom, fairly tend to sustain the plaintiff's cause of action as laid in her declaration? If it does, then, as a matter of law, the plaintiff, is entitled to have her case passed upon by the jury. And whether this evidence is weak or strong is not a question for this court, as the judgment of the Appellate Court, in respect to the facts, where there is any evidence fairly tending to support the judgment, is final, and cannot be reviewed by this court. Metropolitan West Side Elevated Railway Co. v. Fortin, 203 Ill. 454, 67 N. E. 977. The evidence discloses that on or about August 1, 1900, appellee, a woman 40 years of age, was in the employ of appellant, and was working at the time on the third floor of the packing plant of appellant, sweeping and cleaning the rooms underneath a loft or platform on which were stored goods belonging to appellant, and while so engaged the loft fell (there being on the loft, at the time it fell, four men, together with over 3,000 pounds of goods stored thereon), pinning appellee to the floor, and permanently injuring her. The loft is described by appellant, in substance, as follows: It consisted of a platform about 8 feet from the floor, 16 feet long, and approximately the same width. This was supported at the four corners, and braced by supports descending from the ceiling down to the sides of the platform. Attached to the south and also to the north...