Monmouth Min. & Manuf'g Co. v. Erling

• Decision Date: 16 January 1894
• Court: Illinois Supreme Court
• Parties: MONMOUTH MIN. & MANUF'G CO. v. ERLING.

148 Ill. 521

36 N.E. 117

MONMOUTH MIN. & MANUF'G CO.

v.ERLING.¹

Supreme Court of Illinois.

Jan. 16, 1894.

Appeal from appellate court, second district.

Action on the case by Peter Erling against the Monmouth Mining & Manufacturing Company. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.Kirkpatrick & Alexander, for appellant.

J. A. McKenzie, for appellee.

The other facts fully appear in the following statement by PHILLIPS, J.:

This is an action by appellee against appellant on account of personal injuries caused by a defect in machinery furnished by appellant for use in its factory, where appellee was employed. The injury occurred while appellee was shoveling clay out of a pan about 8 feet wide and 15 inches deep, used for the purpose of mixing and tempering the clay. The mixing and tempering were chiefly done by heavy iron wheels moving rapidly inside the pan by means of steam power. These wheels were connected with a shaft, and so arranged that in revolving in the pan they worked from the center to the circumference, and back again. The machinery in the pan was controlled by means of a lever about 10 feet long. To the end of the lever at the pan was attached a clutch, and when this clutch was raised, by pulling down the outer end of the lever, it was thereby disconnected from the machinery which propelled the wheels, and the wheels would stop. Whenever the outer end of the lever was not held down, the clutch would fall down into place of its own weight, throwing the machinery into gear, and the wheels would start. Near the outer end of the lever, an iron eyebolt was run through from below, and to the eye of the bolt was attached an iron rod, about two feet long, with a hook on its lower end. This rod was used to operate the lever, and, when pulled down, the hook at the lower end of the rod was fastened over a hook in a post by the side of the lever; holding the lever down, and preventing the machinery from starting. The outer end of the lever, when pulled down to stop the machinery, was about five feet and nine inches above the floor where the men worked, and when up it was about seven feet and six inches above such floor. There were five of these pans in the same room, and operated by the same gang of men. One of the gang, Costello, operated the levers, stopped and started the machinery, looked after the proper tempering of the clay, and was a sort of foreman. The rest of the gang shoveled clay into the pan, and, when properly mixed and tempered, shoveled it out again. The work of the men was done while the machinery was stopped, and, if the machinery should start while the men were in the pans, the most serious results to them were reasonably to be apprehended. The evidence shows that there was a thread on the end of the eyebolt above the lever, and that the only method adopted for securing it was by nuts screwed down from above, on top of the lever. Originally, there were two such nuts,-one above the other,-but the upper nut had been gone from its place for at least two weeks, and probably much longer. The remaining nut had worked loose after the upper one was gone, and had been screwed down by Costello. The jar of the machinery tended to work the nut loose, and it was probably due to this cause that it worked off from the bolt, and allowed it to come out of the lever. Appellant had a machinist, Carey, whose duty it was to look after the machinery and do the repairing. He was a witness for appellant, and testified that it was his duty to go around, and see if anything was out of order, and, if so, to repair it. To the same effect was the testimony of Apsey, the superintendent. Appellee denied that he had any notice of the defects of the machinery, or knew of the loss of the lock nut. While appellee and another workman, Abrahamson, were in one of the mixing pans, in the line of their duty, shoveling out clay the eyebolt come out of the lever which controlled the wheels in that pan, allowing the lever to fly up and throw the machinery into gear, whereby the wheels were started, and appellee was seriously injured. The second count of plaintiff's declaration charged that the machinery was negligently managed, and in that count the words ‘plaintiff’ and ‘defendant’ were transposed in some portion of the count, evidently by a clerical error, which, so far as appears, was not discovered before the trial. Appellant pleaded to it, but asked the court to instruct the jury to discregard that count, and this the court refused to do. Counsel for appellee, during the closing argument, said to the jury that appellant was a wealthy corporation, and appellee a poor man, to which, when the remark was made, appellant's counsel at once called the attention of the court, and objected to what had been said, and the court said, ‘Counsel must keep within the record.’ There was no ruling by the court upon the propriety of the remark. Before the argument was commenced the court limited the time for argument to one hour and thirty minutes on each side. The record also shows that counsel for appellee spoke five minutes longer than the time allotted to him. Counsel for appellant claim that the court overstepped the bounds of authority and propriety in the limitation, and wronged appellant in allowing counsel for appellee to use five minutes more than they did. The record, however, shows neither objection nor exception to the court limiting the time for argument or to counsel for appellee occupying more time than limited to him. Objection and exception were taken to the giving of certain instructions for appellee, and the refusal and modifying of instructions asked by appellant. The jury returned a verdict for $3,000, and a motion for new trial was overruled, and judgment was entered thereon, to which defendant excepted. That judgment was affirmed by the appellate court of the second district, from which this appeal is prosecuted.

PHILLIPS, J., (after stating the facts.)

It is first insisted that there is no evidence of negligence on the part of the defendant. The principle is fully established, as a rule of law, that the master is bound to exercise reasonable and ordinary care and diligence in providing and keeping in repair safe tools and machinery for the servant's use. With this duty resting on the master, the servant accepting employment accepts it with the assumption that that duty will be complied with by the master, and has a right to assume that tools and machinery furnished for his use are safe, and will be kept in repair. The duty rests on the servant to observe whether machinery furnished him is in repair, and to report to the master if it is not. The rod and hook attached to the eyebolt, and fastened to the lever by nuts on the eyebolt, was the means of fastening the lever in the place which was used to throw the machinery out of gear. Only when the lever was fastened down by this hook thus attached, if the power was in motion, was it safe for the servants to enter the pans to throw the clay therefrom. While so in the pans, for the hook to become unfastened, or, from any cause, the lever to fly up,-which it would do nuless fastened down,-was attendant with serious danger to the men in the pans. Such being the fact, the means of fastening that lever down was a part of the machinery that required supervision of the highest kind, and a most strict compliance with the duty of the master. The danger that would arise from defective fastening of that lever was known on the most superficial observation of the manner of its working. The nammer in which the eyebolt was fastened to the lever was by passing it through a hole near the end of the lever, and then putting on nuts to hold the eyebolt in place. For that purpose two nuts were used on the same bolt, as by so doing the nuts were not likely to jar loose, and allow the bolt to pull out of the lever. One of these nuts had been off for more than two weeks, and the remaining one was therefore more likely to come off the bolt by reason of the jarring of the machinery. The result actually occurred, and caused the injury to plaintiff. The duty of defendant was to see that it was reasonably safe, and that was a continuing duty that required supervision and inspection. If it was out of repair for a length of time that, with proper supervision and inspection, it could reasonably have been known and remedied, then negligence existed, in not exercising that supervision and inspection. While the defendant had in its employ a machinist whose duty it was to look after the machinery and do the repairing, yet that would not relieve the defendant from liability, as the duty was a permanent, continuing one, that could not be delegated to another, so as to relieve it from liability because of the negligence of that other, to whom that power and duty were delegated. Railway Co. v. Jackson, 55 Ill. 492;Railway Co. v. Swett, 45 Ill. 197; Railroad Co. v. Avery, 109 Ill. 314; Railroad Co. v. Troesch, 68 Ill. 545;Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. 574. Its contract with the servant was that it would exercise reasonable and ordinary care and diligence in providing and keeping in repair safe tools and machinery for the servant's use; and the machinery being out of repair for the length of time shown by this evidence, if the condition was not actually known by the master, it was ignorant of it through its own negligence or want of care. It knew, or ought to have known, the defects which caused the injury. The Norway v. Jensen, 52 Ill. 373.

It is urged that the plaintiff himself did not exercise due care, and in support of this contention it is insisted that he had actual notice of the defective machinery, or by the exercise of diligence might have known of it, and neither gave notice to the defendant, nor abandoned the work. The actual notice of the defects is sought to be brought home to him, mainly, by testimony as...