Pennsylvania Coal Co. v. Kelly

Decision Date01 April 1895
Citation156 Ill. 9,40 N.E. 938
PartiesPENNSYLVANIA COAL CO. v. KELLY.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from appellate court, First district.

Action on the case by John Kelly against the Pennsylvania Coal Company. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

David Fales, for appellant.

Beach & Beach, for appellee.

WILKIN, C. J.

Appellee was engaged in the service of appellant, unloading coal from the hold of a steamer at a dock in the city of Chicago. He worked below; his duty being to shovel the coal into large buckets or tubs, which, when filled, were elevated by machinery to a boom over the hatchway of the bessel, and then carried along the boom to a hopper, into which they were emptied. The buckets used were called the ‘Hunt tub.’ Each had a capacity of about one ton. They were hung on iron bails, to which the hoisting ropes were fastened. By an appliance attached to the upper part of these bails, and fastening the outer surface of the tub near the top with a latch, they were held in an upright position while being filled and carried to the hopper. When they reached that place, a certain part of the appliance struck a stationary roller, unlatching the fastening, and automatically dumping the coal into the hopper. As soon as the tub was emptied, it swung back to its upright position, and was relatched. There is no controversy between the parties as to the fact that, when the dumping attachment was in good repair, there was no danger to those below from the tubs being emptied while being elevated. One of them having been filled, and hoisted above the hatchway, suddenly turned over, and threw its contents back into the hold, upon appellee, breaking one of his legs, and otherwise seriously injuring him. To recover damages for those injuries, he brought this suit in the circuit court of Cook county, alleging in his declaration the failure of the defendant to provide him a safe and suitable bucket with which to perform the labor required of him; the alleged defect being that ‘a certain clasp or fastening for automatically dumping or emptying the bucket was worn, out of order, and defective, of which the defendant had notice, and by reason of which plaintiff was injured.’ A second count charged that the injury resulted from the incompetency of the engineer in charge of the engine by which the coal was hoisted, but no proof was offered under that count. That the evidence tended to support the allegations of the first count is not denied. Two trials were had in the circuit court, each resulting in a verdict for the plaintiff; the first being set aside, and a new trial granted. After the first trial, the plaintiff, by leave of the court, amended his declaration. The court, in the meantime, proceeded with the regular call of the trial calendar, but after a number of cases had been tried, and before the call was completed, at the request of counsel for plaintiff the case was again put on the trial calendar. The defendant thereon moved to strike it off, and to pass or continue it, which motion was overruled, and an exception taken. This motion was renewed when the case was called for trial, and again overruled. On the last trial, the jury returned a verdict for the plaintiff, fixing the damages at $5,000. At the request of the defendant, it also returned the following special findings: ‘Special Findings of Jury. First. Q. Was the plaintiff negligent in working under the bucket while the bucket was being lifted above him? A. No. Second. Q. Did the defendant have actual notice that the bucket which caused the accident was defective? A. Yes. Third. Q. Did the plaintiff have notice that the bucket which caused the accident was defective? A. No. Fourth. Q. Did the plaintiff make any examination of bucket that caused the accident, before using the same? A. No. Fifth. Q. Did plaintiff examine the latch on bucket, before the time of accident? A. No. Sixth. Q. Was the bucket defective when the plaintiff worked with same on the day before the accident? A. Yes. Seventh. Q. Was the work of the plaintiff specially dangerous? A. No. Eighth. Q. Was the plaintiff in the exercise of ordinary care and diligence at the time of the accident? Q. Yes. Ninth. Q. Was the plaintiff in the exercise of more than ordinary care and diligence at the time of the accident? A. No. Tenth. Q. Was the plaintiff wholly free from negligence in what caused the injury? A. Yes. Eleventh. Q. When the plaintiff went to work with bucket that caused the accident, was there anything in its condition to give notice to him of any defect in same? A. No. Twelfth. Q. Could the plaintiff by examination find defect in bucket that caused the accident? A. No. Thirteenth. Q. Did the plaintiff have equal means with the defendant of knowing about any defect in the latch on the bucket that caused the accident? A. No. Fifteenth. Q. Was the plaintiff familiar with the use of the bucket that caused the accident? A. Yes. Sixteenth. Q. Was the plaintiff familiar with the use of the latch on the bucket that caused the accident? A. Yes.’ After denying defendant's motion for a new trial, the court entered judgment on the verdict. This is an appeal from a judgment of the appellate court affirming that judgment.

A reversal is urged for four alleged errors committed by the trial court: (1) In placing the case on the trial calendar for a second trial, and not passing or continuing it. (2) Refusing eighth to fourteenth, inclusive, of the instructions asked on behalf of defendant. (3) Giving plaintiff's third instruction. (4) Allowing a model of coal bucket, with pan of coal, to be shown to the jury. If it should be admitted that each of the first three errors was committed, as claimed, appellant could scarcely insist, in the face of the special findings made at its instance, upon a reversal of the judgment against it because of those errors. By these special findings the jury have found the defendant had actual notice that the bucket which caused the accident was defective, and that plaintiff had not; that plaintiff was not only in the exercise of ordinary care and diligence at the time of the accident, but that he was ‘wholly free from negligence in what caused the injury.’ See special findings 11, 12, 13. It will not be seriously contended that, upon these facts, the jury could have properly made any other general verdict than that which they returned. That being true, no error in the trial court which did not tend to produce those findings can be made the ground of reversal here, and, therefore, whether the case was erroneously tried out of its order, or the court erred in refusing and giving instructions, is immaterial. Courts of review reverse only for such errors as may have been prejudicial to the complaining party, and certainly no error, or number of errors, can with propriety be said to prejudice a party when it is clear * * * that the judgment, upon the conceded facts, is the only one that could properly be rendered, and that another trial would therefore result the same way.’ Heckle v. Grewe, 125 Ill. 58, 17 N. E. 437;Avery v. Moore, 133 Ill. 74, 24 N. E. 606. Many other...

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