Missouri Malleable Iron Co. v. Dillon

• Decision Date: 16 December 1903
• Citation: 206 Ill. 145,69 N.E. 12
• Parties: MISSOURI MALLEABLE IRON CO. v. DILLON.
• Court: Illinois Supreme Court

206 Ill. 145

69 N.E. 12

MISSOURI MALLEABLE IRON CO.

v.DILLON.

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Appellate Court, Fourth District.

Action by John T. Dillon against the Missouri Malleable Iron Company. From a judgment of the Appellate Court (106 Ill. App. 649) affirming a judgment for plaintiff, defendant appeals. Affirmed.Wise & McNulty (R. A. Holland, Jr., of counsel), for appellant.

Freels & Joyce, for appellee.

This is an action of trespass on the case brought to the August term, 1901, of the city court of East St. Louis by appellee against appellant to recover damages for personal injuries received by appellee while in the serviceof appellant, by reason of the alleged negligence of the appellant. The appellant filed a plea of not guilty. The case was tried before the court and a jury, and resulted in verdict and judgment in favor of appellee for $1,500. Upon appeal to the Appellate Court for the Fourth District the judgment was affirmed, and the present appeal is from such judgment of affirmance.

The declaration avers, in substance, that the Missouri Malleable Iron Company is a corporation operating a large manufacturing plant in East St. Louis, Ill., in which it manufactures various kinds of castings and iron and steel products for sale, and in conducting its business uses and operates a large building 100 feet long by 100 feet wide, containing a room called the ‘annealing room’; that various kinds of machinery, tools, pots, furnaces, and ovens are used in said room; that appellee was employed therein as a laborer and packer, and on February 22, 1900, was so employed by appellant in said annealing room, where the iron castings are taken after being turned out at the foundry, and the packers place the castings in pots in iron dust called ‘packing,’ and the pots are placed in hot ovens, where they are allowed to remain for a week or more to toughen the iron; that when the pots are severally taken out they are put on a long two-wheeled truck, and wheeled to another and distant part of the building, where the pot is taken from the truck and placed on the iron floor and left to cool; that it was the duty of packers to assist in putting pots in the oven, in taking them out, and placing them in position to cool, as stated; that it was the duty of appellant to use ordinary care to see that the floor on which appellee worked in said building was properly constructed, in good repair, and safe condition for use and travel thereon in said work required of him by appellant, and to see that said truck and machinery and appliances for use therein were properly constructed, in good repair, and safe condition for use by the appellee and his coservants in performing the work required of them by the appellant in conducting its business; that appellant negligently failed to exercise ordinary care to see that the floor on which appellee worked was properly constructed and in good repair and safe condition for appellee to work thereon, but appellant negligently permitted the said floor to be and remain in a defective, broken, and unsafe condition, with holes and uneven places therein and in the surface thereof; that the appellant negligently failed to use ordinary care to see that the said truck, and the appliances thereof, were properly constructed, in good repair and safe condition, for use by the appellee in the performance of his work; that said truck and appliances were defective in construction-out of repair; that the same were defective and unfit for use in said work, in this: that the said truck had no brace, side piece, arm, or railing to stay, hold, or prevent said red hot pot or rings thereof from sliding down upon the appellee and his co-workers, who were pushing or pulling the truck with said pot thereon, and injuring them in case a wheel should break or the floor give way under it, which premises the appellant had notice of prior to and on the day aforesaid, or by the exercise of ordinary care would have had notice, and of which the appellee had no notice; that on February 22, 1900, appellee and his co-laborers were, with ordinary care and diligence for their own safety, pushing or pulling the said truck with one of the pots thereon, packed as aforesaid, from the oven to a distant part of the room, to be placed there to cool, and before reaching said place one wheel of the said truck, by reason of the negligence of the appellant by furnishing a defective and insufficient floor as aforesaid, ran into a hole in the floor, and in consequence of such negligence, and also in consequence of the negligence of the appellant in furnishing a defective, insufficient, and unsafe truck as aforesaid, the top two and a half rings of said redhot pot, packed with iron castings as aforesaid, were then and there jerked or thrown off, and fell down on appellee's left arm, and pinioned it to the handle or pole of said truck, and broke or crushed his said arm from the elbow to the hand, and he was so held by the great weight of hot iron on his arm till his fellows with handspikes or poles lifted it off his arm, and sent him to the hospital, where he remained five months, and suffered much pain of body and mind from said injury; that much of the flesh and muscles of his arm came off, and parts of the bones were crushed and broken and removed by the doctor in charge; that said arm and hand, in consequence of the injury aforesaid, have been wholly disabled, and their strength and usefulness as an arm and hand for all kinds of labor have been wholly destroyed, by reason of which the appellee is permanently disabled from performing all kinds of manual labor; that prior to his injury he was a strong, healthy man, earning $9 a week; that he is now permanently injured and disabled for life; that he has expended $500 for medical treatment, medicines, etc., endeavoring to be cured of his injuries.

The evidence shows that the floor of the annealing room is constructed by first making a bed of concrete about six inches thick; that on top of this, laid in cement, are hard cast-iron plates, three-fourths of an inch thick and about two feet square; that the scales or packing flies all over the room, and covers the floor; that the truck with which the pots are wheeled has two wheels 20 inches in diameter with a 4-inch face; that the truck has a tongue or pole, by which it is pushed or pulled, 20 feet long; that the prongs of the truck, which project under the pots, are 20 inches long; that from the prongs to the body of the truck the distance is 18 inches, and from the wheels to the end of the handle or lever is about 20 feet; that a part of appellee's duties was to pack and help build these pots, and to help haul them on the truck to and from the oven; that the load consisted of boxes of hot castings, resting one upon another to the height of 6 feet; that these boxes were each about 12 inches high, 21 inches long, and 18 inches wide, and the load of them weighed from 2,000 to 2,500 pounds; that ‘in the construction of the truck there was no railing or other device to prevent the stack of boxes composing the load from toppling over; that the truck, when in operation, was manned by a crew of ten men, five on each side of the tongue or pole to propel and guide the truck. On the occasion of the injury the men were pushing the truck when one wheel ran into a hole in the floor, and the man steering the truck said, ‘We've got to get out of here,’ and the men all turned and went to pulling out; that appellee was near the wheel, and when they started to pulling the stack toppled over and fell on him, and very seriously injured him.'

MAGRUDER, J. (after stating the facts).

The evidence tends to prove such allegations in the declaration set forth in the statement preceding this opinion as are necessary to a recovery. No error is assigned by counsel for appellant as to the rulings of the trial court in the admission or exclusion of evidence. One instruction was given by the trial court on behalf of the appellee, the plaintiff below, but no error in this instruction is pointed out by counsel for the appellant in their brief or argument. The court gave 16 instructions in behalf of the appellant, as requested by it. The appellant complains that the court refused, at the close of the evidence, to exclude the evidence from the jury, and to give to the jury a written instruction instructing them to find the defendant not guilty. Appellant also complains that the court refused to give in its behalf two instructions asked by it, numbered, respectively, 17 and 18. The points and objections hereafter discussed grow out of the refusal of the court to give the three instructions so asked by the appellant.

The refusal of the court to instruct the jury to find the appellant not guilty raises the question whether there is any evidence in the record fairly tending to support appellee's action. Chicago City Railway Co. v. Loomis, 201 Ill. 118, 66 N. E. 348;Chicago City Railway Co. v. Martensen, 198 Ill. 511, 64 N. E. 1017. Where there is evidence tending to establish a cause of action the case is one for the determination of the jury, and it is error in such case for the court to instruct the jury to find for the defendant. Graver Tank Works v. O'Donnell, 191 Ill. 236, 60 N. E. 831;Illinois Steel Co. v. McFadden, 196 Ill. 344, 63 N. E. 671,89 Am. St. Rep. 319;Martin v. Chicago & Northwestern Railway Co., 194 Ill. 138, 62 N. E. 599;Central Railway Co. v. Knowles, 191 Ill. 241, 60 N. E. 829;Union Bridge Co. v. Teehan, 190 Ill. 374, 60 N. E. 533;Hartrich v. Hawes, 202 Ill. 334, 67 N. E. 13. Inasmuch as there is evidence tending to establish the cause of action in this case, it was not error for the court to refuse a peremptory instruction to the jury to find the defendant not guilty. Chicago & Alton Railroad Co. v. Eaton, 194 Ill. 441, 62 N. E. 784,88 Am. St. Rep. 161. Where a motion is made to take the case from the jury and to instruct...