Nat'l Syrup Co. v. Carlson

• Citation: 155 Ill. 210,40 N.E. 492
• Parties: NATIONAL SYRUP CO. v. CARLSON.
• Decision Date: 01 April 1895
• Court: Supreme Court of Illinois

155 Ill. 210

40 N.E. 492

NATIONAL SYRUP CO.

v.CARLSON.¹

Supreme Court of Illinois.

April 1, 1895.

Appeal from appellate court, Second district.

Action on the case by Albert Carlson against the National Syrup Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 47 Ill. App. 178. Defendant appeals. Affirmed.A. D. Early and Walker & Eddy, for appellant.

C. A. Works and Wm. Marshall, for appellee.

This is an action for personal injuries received by appellee through the alleged negligence of appellant. The case was before the appellate court of the Second district. The opinion of that court when it was first heard is reported in 42 Ill. App. 178, and the judgment,which was for $5,000, was reversed, and the cause remanded. The case was redocketed, and again tried before a jury, and a verdict returned for $3,000, on which judgment was entered, and the defendant appealed to the appellate court, where the judgment was affirmed.

The material facts which the evidence tended to prove, as stated in the opinion of the appellate court, are as follows: Appellee had worked in the glucose factory for a former proprietor, and had worked there for appellant since March, 1889. His work was on the second, third, and fourth floors. Just before December 8, 1889, he had been working on the day gang, and on that day-which was Sunday-he changed to the night gang. The factory ran night and day, and 140 men were employed. He came to the factory on that Sunday noon, with his dinner pail, and met the foreman, who said that they did not have steam then, and could not start the presses, and told him to go home, and come back at 9 o'clock that evening, and help Mr. Swanson set the presses. As stated in the former opinion, there were two sets of stairs,-the main stairway on the south side, near the east end, and the other on the north side, about the middle of the building. Each had successive flights above each other to the stories above. Appellee went up the south stairway to the second floor, and crossed to the north stairway, and went up to the fourth floor, where his working clothes and lantern were, and left his dinner pail. He then went home, and at 8 o'clock heard a whistle, which he supposed to be for the hands, and got his supper, and went to the factory, where he arrived about 9 o'clock. The factory was dark, but there were some employés in the building. He went up by the south stairway to the third floor, and there found his boss, Mr. Hade, and Mr. Swanson, whom he was to assist, and some person whom he could not distinguish, who had a light, near the east end of the room. He asked Hade if he had work for him, and Hade replied that they had lots of work as soon as they were ready; that they had not got a light yet; and that he should go and change his clothes, and get his lantern, and look after the press cloths, and get them ready. The factory was supplied with electric lighting apparatus, but was not then lighted. Running west from the south stairway, up which appellee had come, there were presses along the south wall. North of them, and between them and the vacuum pans and pumps, there was a passageway, which ran west to and along the elevator, which was its north boundary at the point where the elevator was located. West of the elevator the passageway turned north, and ran across the floor to the north stairway, the elevator being in the angle. The elevator opening had posts at the corners, into which a railing two by four inches was framed at the ends and fastened by rails, as a protection around the hole in the floor. The railing on the south side along the passageway had been taken away that day, and the elevator let down into the basement, to raise a large vacuum pan in sections. Appellant claims that the railing was off on Saturday, when appellee was at work about there, and the testimony of Erickson, the carpenter, and Lincoln, the steam fitter, is relied upon to prove it; but Erickson testified that he did not remember seeing it off Saturday, and Lincoln said that he could not swear to it. Appellee testified that he did not see it off, and Arthur McCarthy, an employé, who saw it off Sunday, did not remember seeing it off before. On Sunday evening, when it was time to quit work for the day, Erickson, the carpenter, told Frank Bowers, who had charge of the carpenters and millwrights, that the railing ought to be fixed, and Bowers told him to do it the first thing in the morning. A section of the vacuum pan, and the jack with which it had been elevated, occupied the south part of the passageway. When appellee was told to get his clothes and lantern, he started along this passageway, and Swanson walked behind him. Appellee held out his hands to find the railing, and walked into the open elevator hole, and fell. The route taken was the one customarily traveled by appellee, and which he testified was the safest and best usually. It is claimed that the railing was frequently off, but the evidence on the last trial does not justify the claim. The manner of its construction shows that it was not designed to be opened in the prosecution of the current business of the factory. If it had been so designed, it would surely have been made to lift or swing, or would be removable like a bar; but it was fastened permanently with rails, and was not intended to be taken out, except as any other permanent structure might be removed in case of necessity. It was sometimes removed for the purpose of putting in new and heavy fixtures requiring such removal, when it was again fastened to the posts by nailing. There is no evidence that it had been off recently before the accident. On this occasion it was necessary to take the railing off, but it was left off at night, when no longer necessary, after attention had been specially called to it, and when employés were expected to resume work that night. No warning was given of its condition, and there was no light to show the danger at a time when appellee had been ordered to be there, and when he and other employés were expected to go to work. Appellee came to the factory in pursuance of orders. He found others there, and found his boss, who told him to get his clothes and lantern. The factory was dark, and he was going to get his light, so that he could see to get the cloths ready for the presses. He took the usual route along the passage way where a railing was usually in place, permanently attached to the posts, without any notice of its being away.

What purported to be a release was offered in evidence by the defense as follows: ‘Rockford, Ill., Jan. 25th, 1890. In consideration of twenty-two and 50/100 dollars to me paid by the National Syrup Company, I do hereby release and discharge the National Syrup Company from all claims and demands arising or which may arise from the injuries received by me on the 8th day of December, 1889. Witness: George B. Gregory. A. Carlson. A. G. Everett.’ The plaintiff testified that when he signed it he knew the company was not owing him, and, when asked if he knew he was settling with the company when he signed it, answered: ‘I understand this paper was for the paymaster to show the company where the money went. That is the way I understand it.’ It appears that during the time he was confined with his injuries his wife had received from the company various sums of money. The plaintiff testifies that he was unable to read and write in the English language, and it is not shown the paper was read to him, nor is his...