Purtell v. Philadelphia & Reading Coal & Iron Co.

Decision Date04 December 1912
Citation256 Ill. 110,99 N.E. 899
CourtIllinois Supreme Court
PartiesPURTELL v. PHILADELPHIA & READING COAL & IRON CO.

OPINION TEXT STARTS HERE

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Action by John J. Purtell, by next friend, against the Philadelphia & Reading Coal & Iron Company. From a judgment for plaintiff, defendant appeals. Affirmed.Ullmann, Hoag & Davidson, of Chicago (Parker H. Hoag, of Chicago, of counsel), for appellant.

Francis J. Woolley, of Chicago, for appellee.

CARTER, J.

Appellee recovered a judgment in the circuit court of Cook county against appellant for personal injuries alleged to have been sustained while working on its coal dock. The judgment was affirmed on appeal to the Appellate Court for the First District and a certificate of importance was granted. This appeal followed.

When the issues were finally made up, the declaration contained three counts. The first (a common-law count) alleged that appellant was engaged in the business of dealing in coal and was possessed of a coalyard, and that appellee was employed there as a waterboy by certain of appellant's servants or subagents for the purpose of carrying water to them while they were working in said coalyard, with the knowledge, consent, permission, and approval of appellant; that appellee was 11 years and 11 months old; that it was appellant's duty to use all due care and diligence to furnish appellee a reasonably safe place to work, etc. The other two counts charged appellant with the violation of an act regulating the employment of children-one in that it permitted appellee to be employed in a mercantile institution, and the other in a manufacturing establishment, factory, and workshop. Michael M. Connery, superintendent of the dock, was also made a defendant. The jury returned a verdict of guilty as to appellant and not guilty as to Connery.

On the trial it appeared from the evidence that appellant, at the time of the accident, was a coal mining and coal selling corporation. It mined coal in Pennsylvania and brought it in vessels to a dock and coalyard near Eighteenth street, in Chicago, and there sold it. The coal was cleaned and screened in the yard and then hauled away. In this yard, at the edge of the river, about 35 feet above the water, was a large platform about 25 feet wide and 200 feet long, extending along the river bank, on the top of which were small tracks, which ran back to storage bins. On the river side of this platform three booms projected, operated from masts extended above the platform. To the booms were attached blocks and pulleys, by means whereof, and by the use of steam power, coal was unloaded in buckets from the vessel to the platform and dumped in small coal cars. These cars were then pushed by men along the platform on the tracks to storage bins and dumped. At the time of the accident, in October, 1903, about 14 men were hoisting, dumping, and pushing cars on this structure, and others were helping unload in the vessel. The platform was used by workmen only when a boat was being unloaded. It appears further from the evidence that for 16 years it had been customary for the men, when working on the platform, to have a waterboy bring them water. The buckets or cans were filled from a hydrant in the coalyard and taken by the boy up a pair of winding stairs to the platform. The men on the platform employed the boy and paid him when they received their pay from appellant. The day before the accident appellee was passing along by the coalyard, and a man on the platform called down to him, asking if he wanted a job for a couple of days, until the boat was unloaded.The boy thereupon went home and procured some cans and went back to the platform, where some of the men showed him where to get the water, and he worked that day and the next, until the accident. Whenever the men wanted water they would call to the boy, and he would take the can to them on the platform, but not out on one of the ‘runs.’ When not actually carrying water he sat on a bench on the platform. It appeared also from the testimony that, while he carried water principally, he occasionally brought beer to some of the men. On the day of the accident two of the derricks on the masts were being used by the men in unloading coal. A strong wind was blowing. The boom on the idle mast had been tied that morning by Humphrey McCarthy, an employé of the defendant company, to a post of the platform by means of a ‘marlin string’; that is, a strand out of the end of a rope, about the size of a lead pencil. The wind broke the string, and the block hanging from the boom swung out and struck appellee in the back, knocking him from the platform, and he fell 17 feet or more to the deck of the boat. Both arms received a compound, comminuted fracture of both bones near the wrist, besides a fracture at the elbow. Appellee was in a hospital for months, suffering great pain. After the wounds healed, portions were found suppurated because of infection. The arms were permanently shortened and deformed and the right wrist absolutely immovable. The hands are smaller than normal and will always remain so. In the right arm the ulna does not articulate with any of the bones of the wrist. Appellee is compelled to keep straps on both wrists to strengthen them and a bandage on his right hand.

Appellant insists that there was no evidence warranting the verdict under the declaration, and that peremptory instructions offered should have been given. It contends that appellee was a mere licensee, and went upon appellant's premises for purposes of his own and not for any purpose connected with the business of appellant, while appellee contends that under the facts in this case he was upon the premises by appellant's invitation, engaged in a mutual business.

[1][2][3] The owner of premises owes no duty to exercise care to keep his premises in a reasonably safe condition to a person who may be there as a mere licensee. Pauckner v. Wakem, 231 Ill. 276, 83 N. E. 202,14 L. R. A. (N. S.) 1118, and cases cited. If, however, such person is there by the invitation, express or implied, of the owner, then such owner owes him a duty to exercise ordinary care to keep the premises in reasonably safe condition. When a person is upon premises by implied invitation, it means he is there for a purpose connected with the business in which the owner of the premises is engaged or which he permits to be carried on. Plummer v. Dill, 156 Mass. 426, 31 N. E. 128,32 Am. St. Rep. 463. The evidence in this record shows plainly that for many years there has been a custom, which must have been well known to those in charge of appellant's yard, for the car pushers and others, in their work of handling coal, to employ a boy as a water carrier, who kept them supplied with water, and who sometimes, at the request of such employés, was expected to go for beer. In Atkins v. Lackawanna Transportation Co., 182 Ill. 237, 54 N. E. 1004, this court held that where the owners of a vessel engaged in carrying merchandise permitted a boy on said vessel for the purpose of supplying its employés with drinking water, he being hired by such employés for that purpose, such owners must exercise reasonable care towards such boy while he was on the vessel. In Illinois Central Railroad Co. v. Hopkins, 200 Ill. 122, 65 N. E. 656, it was held that one going to a railroad depot to deliver meals to mail clerks on a train, in accordance with an agreement between her and such mail clerks, where such practice had been followed for years with the knowledge and consent of the railroad company, was not a mere licensee upon the depot platform, but must be regarded as there by the implied invitation of said railroad company.

The argument of counsel for the appellant that the car pushers could have gone to the hydrant themselves, and that therefore there was no necessity of employing a waterboy, is without force. This argument concedes, what we think is true, that water was a physical necessity in the vigorous and dusty work in which these car pushers were engaged. Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 42 South. 96. The evidence offered by appellant showed that the men in the boat were paid by the ton for the coal handled, and that the car pushers and others on the platform had to take the...

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