McInerney v. Western Packing & Provision Co.

• Decision Date: 05 April 1911
• Citation: McInerney v. Western Packing & Provision Co., 249 Ill. 240, 94 N.E. 519 (Ill. 1911)
• Court: Illinois Supreme Court
• Parties: McINERNEY v. WESTERN PACKING & PROVISION CO.

249 Ill. 240

94 N.E. 519

McINERNEY

v.WESTERN PACKING & PROVISION CO.

Supreme Court of Illinois.

Feb. 25, 1911.

Rehearing Denied April 5, 1911.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; George W. Patton, Judge.

Action by Thomas McInerney, administrator, against the Western Packing & Provision Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff (154 Ill. App. 559), defendant brings the case up by certiorari. Affirmed.E. E. Gray, F. J. Canty, and J. C. M. Clow, for plaintiff in error.

Thomas J. Healy and John A. Bloomingston, for defendant in error.

FARMER, J.

This action was brought by defendant in error against plaintiff in error for damages for negligently causing the death of defendant in error's intestate. William Lawler was a common laborer in the employ of plaintiff in error, and at and for some time before his death was engaged in removing ashes from the pit underneath the boilers owned and operated by plaintiff in error day and night in its business of slaughtering cattle. Lawler worked at night. To do his work he was required to descend into the pit by means of a movable ladder, and the ladder was then taken up out of the pit while he was throwing the ashes out. After throwing the ashes out of the pit the ladder would be placed in it, and he would come out of the pit and wheel the ashes away. Early in the morning of September 7, 1906, while in the pit, a tube in the boiler above him burst, and before he could be removed from the pit he was so injured by steam and hot water, escaping from the boiler on account of the tube bursting, that he died the same day.

The case was submitted to the jury under the first count of the original declaration and the first of two additional counts filed by leave of court December 16, 1907. The first original count, after proper inducement, alleged: ‘And it then and there became and was the duty of the defendant to keep the said boiler flues in a reasonably safe condition to prevent same from bursting and thereby to injure or kill persons who might be near to or in the vicinity of same, yet the defendant did not regard its duty in this behalf, but, on the contrary, by and through certain of its servants negligently, wrongfully, and carelessly caused or permitted the said boiler and flues to become unsafe.’ The first additional count filed December 16, 1907, charged that ‘while the plaintiff's intestate was, in the exercise of due care and caution for his own safety, working in the then certain pit in front of the fire box of said boiler, the defendant negligently and carelessly suffered and permitted a certain then flue to be and become defective, in this, to wit: That the said flue at a certain portion thereof was negligently suffered and permitted to become thin, and much thinner than other portions of the said flue, and much thinner than was usual and customary in such flues, all of which the defendant well knew, or in the exercise of reasonable inspection could have known, and of which plaintiff's intestate was ignorant, and had no opportunity of knowing, so that by reason of the negligence of the said defendant, as aforesaid, in furnishing said flue which was then and there defective, as aforementioned, said flue, by reason of said defect mentioned, then and there exploded, ruptured, and blew out.’

Defendant pleaded the general issue only to the original declaration. To the additional count filed December 16, 1907, in addition to the general issue it pleaded the statute of limitations. The court sustained a demurrer to the plea of the statute of limitations. At the close of the evidence for the plaintiff below, defendant moved the court to direct a verdict in its favor, but the motion was denied. It was renewed at the close of all the evidence, and again denied, and proper exceptions were preserved to the rulings of the court. The jury returned a verdict in favor of plaintiff for $7,500, upon which the court rendered judgment, and defendant appealed to the Appellate Court for the First District. That court affirmed the judgment of the trial court, and on the petition of defendant the case is brought to this court by writ of certiorari.

It is insisted that because the original count of the declaration alleges that the defendant, by and through its servants, negligently, wrongfully, and carelessly caused or permitted the boiler and flues to become unsafe, etc., and failed to allege that the servants referred to were not fellow servants of the deceased, said count states no cause of action, and the statute of limitations was a good plea to the second count. The first count does not come within the rule announced in Joliet Steel Co. v. Shields, 134 Ill. 209, 25 N. E. 569, and Schillinger Bros. Co. v. Smith, 225 Ill. 74, 80 N. E. 65, as contended by plaintiff in error. In the firstmentioned case the plaintiff was a track repairer, and the declaration alleged he was injured by the negligence of other servants of the defendant in placing an iron mold in an insecure and dangerous position near the track. There was nothing in the declaration to show that the servants whose negligence caused the injury were not also track repairers with the plaintiff and his fellow servants. In the Schillinger Bros. Co. Case one count of the declaration alleged that plaintiff's injury resulted from the negligent overloading of a scaffold by servants,agents, and employés of the defendant, without also alleging that said servants, agents, and employés were not fellow servants of the plaintiff. In the case before us the count in question charges that it was the duty of defendant to keep its boilers and flues in a reasonably safe condition, so as to prevent them from bursting and injuring or killing persons employed in their vicinity, but that the defendant did not regard its duty in that behalf, but, on the contrary, through certain of its servants negligently, wrongfully, and carelessly permitted the boilers and flues to become unsafe. The negligence charged was that of the defendant, which, being a corporation, of course, acted through its agents and servants. The declaration alleges Lawler's duty was to take ashes out of the pit underneath the boiler, and it was not necessary to the statement of a cause of action to allege that those who were charged with the duty of caring for and maintaining the boiler and flues in a safe condition were not fellow servants of the deceased. Libby, McNeill & Libby v. Scherman, 146 Ill. 540, 34 N. E. 801,37 Am. St. Rep. 191. It does not appear, from the averments of the count, that Lawler had any association or connection with the agents or servants of the defendant in charge of the boiler, or that he had anything...