Morris v. Gleason

• Decision Date: 31 December 1877
• Citation: 1 Ill.App. 510,1 Bradw. 510
• Parties: NELSON MORRIS, Impl'd, etc.v.MARY D. GLEASON, Adm'x.
• Court: United States Appellate Court of Illinois

1 Ill.App. 510

1 Bradw. 510

NELSON MORRIS, Impl'd, etc.

v.MARY D. GLEASON, Adm'x.

Appellate Court of Illinois, Second District.

December Term, 1877.

OPINION TEXT STARTS HERE

Appeal from the Circuit Court of Henry county; the Hon. Geo. W. Pleasants, Judge, presiding.

Mr. C. K. Ladd and Mr. Charles Dunham, for appellant; argued that if the deceased had knowledge of defects in the machinery and still continued his work, no recovery can be had for an injury received in the course of such business, and cited Camp Point Manufacturing Co. v. Ballou, adm'r, 71 Ill. 417; C. & A. R. R. Co. v. Monroe, 9 Chicago Legal News, 375; T. W. & W. R'y Co v. Moore, adm'r, 77 Ill. 217; Sullivan's adm'r v. Louisville Bridge Co. 9 K'y Ct. App. 81; Ladd v. New Bedford R. R. Co. 20 Am. Rep. 332; Ford v. Fitchburg R. R. Co. 110 Mass; St. L. & S. E. v. Britz, 72 Ill. 256; Patterson v. P. & C. R. R. Co. 18 Am. Rep. 415; Moss et al. v. Johnson, 22 Ill. 633; I. B. & W. R. R. Co. v. Flanigan, 77 Ill. 365.

A person entering upon a necessarily dangerous employment takes upon himself the risk incident to such employment. Wood's Master and Servant, 758; Woodley v. Metropolitan R'y Co. Am. Law T. Oct. 1877; Gibson v. Erie R'y Co. 20 Am. Rep. 553; Lovenguth v. City of Bloomington, 71 Ill. 238.

The master cannot be held liable simply because he knows the machinery is unsafe, if the servant has the same means of knowledge as the master: Williams v. Clough, 3 H. & N. 258; Wright v. N. Y. Cent. R. R. Co. 25 N. Y. 566.

If the master has appointed a competent person to make repairs, he cannot be held liable for defects therein resulting from the negligence of the person in making repairs: Warner v. Erie R. R. Co., 39 N. Y. 468; Wood's Master and Servant, 903; Stark v. McLaren, 10 C. S. 3d series.

Unless the negligence of the deceased was slight and the negligence of appellant gross in comparison, no recovery can be had: Kewanee v. Dupew, 80 Ill. 119; Keokuk Packet Co. v. Henry, 50 Ill. 264; C. B. &. Q. R. R. Co. v. Dunn, 52 Ill. 260; Shearman and Redfield on Neg. § 320.

The burden of proof is upon the plaintiff to show that the explosion was not caused by the negligence of the deceased, or that his negligence was slight in comparison to that of the defendant: Ill. Cent. R. R. Co. v. Houck, adm'r, 72 Ill. 285; Chicago v. Major, 18 Ill. 349; C. & A. R. R. Co. v. Mock, adm'x, 72 Ill. 141.

And to show that the deceased exercised due care, and caution, and that his negligence did not contribute to the injury complained of: Dyer v. Talbot, 16 Ill. 300; G. &. C. U. R. R. Co. v. Fay, 16 Ill. 558; Nolan v. Schickler, 4 Cent. Law J. 263.

That an instruction given for plaintiff which ignored the question of knowledge of the defects in the machinery on the part of the deceased, was erroneous: Camp. P't. Mf'g Co. v. Ballou, adm'r, 71 Ill. 417.

And such error in instructions is not cured by giving other instructions not objectionable: C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; C. & A. R. R. Co. v. Murray, 62 Ill. 326; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256; I. C. R. R. Co. v. Maffit, 67 Ill. 431.

That negligence is a question for the jury under the circumstances of each particular case, and an instruction which tells the jury what constitutes negligence in that particular case, is erroneous: Skelly v. Kahn, 17 Ill. 170; G. & C. U. R. R. Co. v. Yarwood, 17 Ill. 468; Chicago v. Major, 18 Ill. 349.

If the deceased had a better opportunity of knowing the true condition of the machinery than the defendants did, he took all risk of known and unknown dangers, and no recovery can be had for injuries received in the course of such employment: Gibson v. Pacific R. R. Co. 46 Mo. 163; Paulmier v. Erie R'y Co. 34 N. J. 151; Dewitt v. Pacific R. R. Co. 50 Mo. 302; Mad River R. R. Co. v. Barber, 5 Ohio St. 541; Kroy v. C. R. I. & P. R. R. Co. 32 Iowa, 357; Davis v. Detroit, etc. R. R. Co. 20 Mich. 105; Thayer v. St. Louis, etc. R. R. Co. 22 Ind. 26; Frazier v. Pa. R. R. Co. 38 Pa. St. 104; Ind. etc. R. R. Co. v. Lane, 10 Ind. 556; Greenleaf v. Ill. Cent. R. R. Co. 33 Iowa, 52; McMillan v. Saratoga, etc. R. R. Co. 20 Barb. 449; Wright v. N. Y. Cent. R. R. Co. 25 N. Y. 566; McGlynn v. Broderick, 31 Cal. 376; Skipp v. Eastern, etc. R. R. Co. 3 H. & N. 258; Seymour v. Maddox, 16 Q. B. 326; Combs v. New Bedford Co. 102 Mass. 586; Wonder v. B. & O. R. R. Co. 32 Md. 410; Buzzell v. Mfg. Co. 48 Me. 121; Dyner v. Leach, 26 L. J. Exch. 221; Huddleston v. Lowell Machine Shop, 106 Mass. 282; Priestly v. Fowler, 3 M. & W. 1; Wharton on Neg. § 217; Shearman and Redfield on Neg. § 87.

Messrs. Williams, McKenzie & Calkins, for appellee; contended that the verdict will not be set aside unless clearly against the weight of evidence, and cited Allen v. Smith, 3 Scam 97; Weldon v. Francis, 12 Ill. 460; Bloomer v. Denman, 12 Ill. 240; French v. Lowry, 19 Ill. 158; Cross v. Cary, 25 Ill. 562; Aurora F. Ins. Co. v. Eddy, 55 Ill. 213; Walker v. Martin, 59 Ill. 348; McNellis v. Pulsifer, 64 Ill. 494.

Where there is evidence from which the jury could find their verdict, it will not be disturbed, although in the opinion of the appellate court the evidence might justify a different result: T. W. & W. R. R. Co. v. Moore, adm'r, 77 Ill. 217; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272.

When a person enters a service which from its nature is hazardous, he does it at the risk of all perils necessarily and naturally incident to such employment: Gibson v. Pacific R. R. Co., 46 Mo. 163; Baxter v. Roberts, 44 Cal. 187; Gunderson v. Peterson, 65 Ill. 193.

He does not assume the risk of extra hazards not brought to his notice either directly or indirectly: Baxter v. Roberts, 44 Cal. 187; Gibson v. Pacific R. R. Co., 46 Mo. 163; Hayden v. Mf'g. Co., 29 Conn. 548; Ryan v. Fowler, 24 N. Y. 410; Noyes v. Smith, 28 Vt. 59.

An employer is bound to furnish safe and suitable machinery, and keep the same in proper repair: Wonder v. B. & O. R. R. Co. 3 Am. Rep. 144; Wright v. N. Y. Cent'l R. R. Co., 25 N. Y. 563; Ryan v. Fowler, 24 N. Y. 413; Keegan v. Western R. R. Co. 8 N. Y. 180; Ill. Cent. R. R. Co. v. Welch, 52 Ill. 183; C. & N. W. R. R. Co. v. Taylor, 69 Ill. 461; C. C. & I. C. R'y Co. v. Troesch, 68 Ill. 548; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; Perry v. Marsh, 25 Ala. 659; Cayser v. Taylor, 10 Gray. 274; Byron v. N. Y. State Print. Co. 26 Barb. 39; Noyes v. Smith, 28 Vt. 59; Hallower v. Henley, 6 Cal. 209; Sizer v. Syracuse, 7 Lans. 67; Perry v. Ricketts, 55 Ill. 234; T. W. & W. R'y Co.v. Fredericks, 71 Ill. 294; Schr. Norway v. Jensen, 52 Ill. 373.

An employer cannot delegate to another the responsibility of seeing that things are kept in proper shape, and by so doing escape liability: Corcoran v. Holbrook, 59 N. Y. 517; C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; T. W. & W. R'y Co. v. Ingraham, 77 Ill. 309; T. W. & W. R'y Co. v. Moore, 77 Ill. 217; Laning v. N. Y. Cent. R. R. Co. 49 N. Y. 532.

It is not necessary to bring actual knowledge of defects to the notice of the employer; it is his duty to find them out: T. P. & W. R. R. Co. v. Conroy, 61 Ill. 162; same case, 68 Ill. 560.

An employer knowing hidden extra hazards is bound to disclose them to his employee: Baxter v. Roberts, 44 Cal. 187; Clarke v. Holmes, 7 H. & N. 937; Fort Wayne R. R. Co. v. Gildersleeve, 33 Mich. 133; Strahlendorf v. Rosenthal, 30 Wis. 697; Spelman v. Fisher, 56 Barb. 151; Fairbank v. Haentzsche, 73 Ill. 236.

The instructions, if taken together, fairly state the law and have no tendency to mislead the jury, and that is all that can be required: Gilchrist v. Gilchrist, 76 Ill. 281; Hardy v. Keeler, 56 Ill. 152; Graves v. Shoefelt, 60 Ill. 462; Daily v. Daily 64 Ill. 329; Howard F. & M. Ins. Co. v. Cornick, 24 Ill. 455; Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206; Springdale Cem'y Ass'n v. Smith, 24 Ill. 480; C. B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; Stobie v. Dills, 62 Ill. 432; Lettick v. Honnold, 63 Ill. 335; C. R. I & P. R. R. Co. v. Herring, 57 Ill. 59; Stowell v. Beagle, 79 Ill. 525; T. W & W. R. R. Co. v. Moore, 77 Ill. 217.

LELAND, P. J.

This was an action on the case by the administratrix of the estate of George H. Gleason, against Nelson Morris, Joseph C. Niles, Michael O'Neil, and George McGuire. The suit was dismissed, as to all the defendants served except Morris.

The action was brought to recover damages on account of the death of said George H. Gleason, and there was a verdict and judgment for $5,000. The defendants against whom the suit was brought, composed a firm operating a steam flouring mill, at Kewanee, in Henry county. The deceased was employed as an engineer to run a steam engine, used in the mill. It is alleged in the declaration that while doing so with due care and diligence, in the full hope and belief that the engine and boiler were perfect and safe, the boiler exploded and killed him; that it was not perfect, but was unsafe, as defendants then and there well knew, and that the death was caused by the neglect and carelessness of defendants in not providing a sufficient, safe and suitable boiler.

There was evidence tending to show that the boiler was unsafe and imperfect to the knowledge of the defendants, and that their negligence may have caused the death as alleged.

The main controversy in the case would seem to have been on the subject whether the deceased exercised proper care and caution, and also as to whether he was aware of the defects in the boiler, to which the explosion should be attributed. Appellee contended that although deceased might have known that the boilers were in a dangerously imperfect condition, and that he had acknowledged this to be so, that he thought so merely because the boilers leaked, and not because the material of which they were constructed was old, rotten and defective. Appellant contended that deceased was fully aware of all the causes of danger, if any, and...