Libby, McNeill & Libby v. Cook

• Citation: 78 N.E. 599,222 Ill. 206
• Court: Supreme Court of Illinois
• Decision Date: 10 October 1906
• Parties: LIBBY, McNEILL & LIBBY v. COOK.

222 Ill. 206

78 N.E. 599

LIBBY, McNEILL & LIBBY

v.COOK.

Supreme Court of Illinois.

June 14, 1906.

Rehearing Denied October 10, 1906.

Appeal from Appellate Court, First District.

Action by Peter B. Cook against Libby, McNeill & Libby. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.F. J. Canty, J. C. M. Clow, and E. E. Gray, for appellant.

James C. McShane, for appellee.

This is an appeal from a judgment of the Branch Appellate Court for the First District, affirming a judgment of the superior court of Cook county for the sum of $6,000, in a suit brought by appellee, a servant, to recover from appellant, his master, for personal injuries. The following statement of facts is, in large part, that of the Branch Appellate Court:

The injuries complained of were inflicted by the cylinder-head of an engine which gave way or bursted, a piece of it striking appellee, causing a compound fracture of the left leg between the thigh and knee joint. The accident was apparently caused by the breaking of an appliance called a ‘strap,’ used to connect the piston-rod of the engine with the connecting-rod. The latter was attached to a crank on a large drive-wheel carrying the main belt by which the power was transmitted to the machinery by the engine operator. The breaking of the strap took off resistance from the piston-rod, allowing the latter to be thrown back against the cylinder-head, causing it to burst. The strap, the breaking of which seems to have been the primary cause of the accident, is a solid piece of metal having parallel sides connected by a semicircular end. Its shape is like that of the letter U, with the parallel sides somewhat prolonged. The curved part, referred to as the ‘throat,’ is so placed as to play around the boxing or brasses which encircle the pinion on the end of the piston-rod. The strap in this way joins the connecting-rod, which drives the large wheel, with the piston-rod, which works rigidly back and forth. The sides of the strap are held firmly to the connecting-rod by a gib and a key inserted in slots made in the strap and rod. The strap in about 1 3/4 inches through at the center of the curve or throat, about 1 inch through at the conjunction of the sides with the beginning of the curve, where the fracture occurred, while it is about 3 inches wide, and the sides are about 9 3/4 inches in length, forming a substantial and solid piece of metal. Such a strap is made from a solid forged piece of steel or iron by drilling and slotting out the center. It is then filed out and planed off on the inside, and so finished that it fits the rod so tightly that it has to be driven on with a soft hammer. After the accident it was found that the throat or curved part of the strap had broken completely off from the two parallel sides; the fracture occurring at both sides at a point where the curve thickened, leaving the two sides of the strap still attached to the connecting-rod with the gib and key in place. Prior to the day appellee was injured a slight opening had been observed between the rod and the end of the strap on top of the rod. The following drawing, representing the piece of machinery under discussion, will perhaps aid in arriving at a correct understanding of the manner in which the accident occurred:

Image 1 (2.47" X 3.4") Available for Offline Print

The plaintiff was employed as an oiler in the engine room. At the moment of the bursting of the cylinder-head he was passing in such close proximity as to receive the injury complained of. The declaration contains a single count, and charges that appellant negligently permitted the strap, the breaking of which caused appellee's injury, to become and remain in a defective, improper, and unsafe condition, in that it was broken, weakened, and otherwise defective and liable to break, and that appellant knew, or by the exercise of ordinary care might have known, this in time to avoid the injury. The defendant interposed the general issue.

SCOTT, C. J. (after stating the facts).

At the close of all the evidence the defendant moved the court to instruct the jury to find a verdict of not guilty. This motion was not sustained, and its denial is assigned as error. The question thus presented has been stated by this court in varying language. It has been said that such a motion should be allowed ‘where the evidence, with all the legitimate and natural inferences to be drawn therefrom, is wholly insufficient, if credited, to sustain a verdict for the plaintiff’ (Lake Shore & Michigan Southern Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773,30 L. R. A. 33); or where the evidence, ‘with all the inferences which the jury might justifiably draw therefrom, is not sufficient to support a verdict for the plaintiff, if one should be returned’ (Foster v. Wadsworth-Howland Co., 168 Ill. 514, 48 N. E. 163;Foster v. McKeown, 192 Ill. 339, 61 N. E. 514); and it has been said that such a motion presents the question in this court whether there was evidence ‘fairly tending to support the verdict’ (Chicago Terminal Railroad Co. v. Kotoski, 199 Ill. 383, 65 N. E. 350;Chicago & Alton Railway Co. v. Walker, 217 Ill. 605, 75 N. E. 520); ‘whether there was evidence tending to support the verdict’ (Consolidated Fireworks Co. v. Koehl, 206 Ill. 283, 68 N. E. 1077); whether ‘the evidence for the plaintiff below, with the reasonable inferences to be drawn therefrom, is sufficient to warrant a verdict for the plaintiff’ (Chicago & Alton Railroad Co. v. Wise, 206 Ill. 453, 69 N. E. 500); whether ‘the evidence sustaining the cause of the plaintiff below, with the reasonable inferences to be drawn therefrom, is sufficient to warrant a verdict for the plaintiff’ (Nickerbocker Ice Co. v. Benedix, 206 Ill. 362, 69 N. E. 50;Illinois Central Railroad Co. v. Swift, 213 Ill. 307, 72 N. E. 737); and whether there is ‘in this record any evidence which, with the inferences that the jury may justifiably draw therefrom, is sufficient to support a verdict for plaintiff’ (Chicago City Railway Co. v. Bennett, 214 Ill. 26, 73 N. E. 343).A peremptory instruction for defendant should not be given, ‘except where there is a substantial failure of evidence tending to prove the plaintiff's cause of action or to prove some material fact necessary to establish it’ (Chicago & Northwestern Railway Co. v. Dunleavy, 129 Ill. 132, 22 N. E. 15); if the evidence ‘tended to prove the allegations of the declaration’ (Boyce v. Tallerman, 183 Ill. 115, 55 N. E. 703); ‘where there is evidence tending to show the plaintiff's right to recover’ (Landgraf v. Kuh, 188 Ill. 484, 59 N. E. 501); where there is ‘any evidence in te record fairly tending to support the plaintiff's cause of action’ (Chicago City Railway Co. v. Martensen, 198 Ill. 511, 64 N. E. 1017;Illinois Terminal Railroad Co. v. Mitchell, 214 Ill. 151, 73 N. E. 449); where ‘there was evidence tending to sustain the cause of action as set up in the declaration’ (Consolidated Coal Co. v. Fleischbein, 207 Ill. 593, 69 N. E. 963); where ‘there was evidence fairly tending to prove a cause of action against the defendant’ (Rowe v. Taylorville Electric Co., 213 Ill. 318, 72 N. E. 711); where there was any evidence ‘which, with all its reasonable inferences and intendments, fairly tended to prove the plaintiff's case’ (Chicago City Railway Co. v. Lannon, 212 Ill. 477, 72 N. E. 585); where ‘there is evidence in the record fairly tending to prove the allegations of the declaration’ (Chicago City Railway Co. v. Gemmill, 209 Ill. 638, 71 N. E. 43;Pittsburg, Cincinnati, Chicago and St. Louis Railway Co. v. Banfill, 206 Ill. 553, 69 N. E. 499); where ‘the evidence introduced on behalf of the plaintiff, when taken to be true, together with all legitimate inferences which may be drawn therefrom in favor of the plaintiff, tends to support the cause of action set out in his declaration’ (Hewes v. Chicago and Eastern Illinois Railroad Co., 217 Ill. 500, 75 N. E. 515); or where ‘the evidence produced before the jury, with all the inferences proper to be drawn therefrom, fairly tended to prove the cause of action set out in the declaration.’ Union Bridge Co. v. Teehan, 190 Ill. 374, 60 N. E. 533. Each of the quoted expressions bears precisely the same meaning, in so far as a rule is laid down for determining whether a peremptory instruction should be given. The differing language used in the various cases results from the fact that the court has not seen fit to state the rule in precisely the same terms on every occasion, and does not indicate that the view of the court has changed at any time.

There are certain cases in which it is intimated that one rule should be applied to a motion of this character when it is made at the close of the plaintiff's evidence, and another when it is made at the close of all the evidence. Among these cases are Pullman Palace Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285,18 L. R. A. 215; ...