Odin Coal Co. v. Tadlock
| Citation | 216 Ill. 624,75 N.E. 332 |
| Parties | ODIN COAL CO. v. TADLOCK. |
| Decision Date | 24 October 1905 |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, Fourth District.
Action by Elmer Tadlock against the Odin Coal Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.
Louden & Crow, for appellant.
Frank F. Noleman and W. F. Bundy, for appellee.
The Appellate Court for the Fourth District affirmed a judgment recovered by appellee in the circuit court of Marion county for personal injuries received by him while engaged in the service of appellant as a mule driver in its coal mine, which were alleged to have been caused by defective appliances upon a truck furnished by appellant for his use. The case has been brought to this court by appeal.
In the argument of counsel for appellant it is contended that the circuit court erred in refusing to direct a verdict of not guilty at the close of the evidence, as requested by defendant, and also that the court erred in refusing to give to the jury instruction numbered 4 asked by the defendant; but neither of these questions can be considered, for the reason that they were not among the grounds stated in defendant's motion for a new trial. If there was error in refusing to direct a verdict or give the instruction, it was proper ground for the motion for a new trial. Defendant filed its written motion, specifying in detail the errors which it alleged occurred in the course of the trial, and the refusal to direct a verdict was not mentioned. The fourth ground of the motion was that the court improperly refused to give instructions numbered 1, 2, and 3 asked by the defendant; but the refusal to give instruction numbered 4 was not alleged to be erroneous. The circuit court, therefore, in overruling the motion for a new trial, did not pass on those questions, and defendant waived its right to assign error as to either. West Chicago Street Railroad Co. v. Krueger, 168 Ill. 586, 48 N. E. 442.
Plaintiff was injured while hauling from one part of the mine to another a machine weighing about 3,000 pounds, which was used for undercutting coal. For the purpose of moving the machine it was drawn upon a truck by a windlass and chain, and the truck was provided with two ratchet wheels, with dogs, to prevent the chain from unwinding and allowing the machine to slide off the truck. The evidence for plaintiff tended to show that neither dog was fit or sufficient, and the fact was undisputed that the upper ratchet wheel, and the dog which held it in place, had been out of repair and unfit for use for four or five days. The machine boss of the defendant, whose duty it was to make repairs, had been notified of the defective condition of the appliances, and had tried to file the cogs on the ratchet wheel, but did not succeed in making the wheel fit for use. He had promised to have it fixed, and there had been ample time to comply with the promise. The making of the repairs was a simple thing, which could have been attended to at any blacksmith or repair shop without delay. For several days the machine men had used a machine bit in place of the dog to load the machine, and on this occasion the upper dog was taken out and carried to the repair shop. The machine boss knew of the condition of the appliances, and knew that injury was liable to result from such condition. Plaintiff knew of the defective condition of the appliances, and two or three days before the accident complained to the machine runners of such condition, and said he was not going to move the machine any more unless it was fixed. One of the machine runners told him the machine boss had promised to fix it, and that was all he could do. When the machine boss failed to make the machine safe by filing the cogs, he said that he would get it fixed as soon as he could, and would get a dog made and come the next day and fix it. There was a palpable omission of duty on the part of the machine boss. When the plaintiff was called to haul the machine, it was already loaded, and the place where it stood was dark. The plaintiff did not make any inspection of the truck, but testified that he supposed the promise of the machine boss had been kept and the repair made. On the trip the machine slid off the truck and injured plaintiff.
It is contended that the court erred in giving to the jury the first instruction asked by the plaintiff, which informed the jury that if the defendant neglected or failed to furnish the plaintiff with reasonably safe...
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