Rost v. F.H. Noble & Co.

• Decision Date: 21 April 1925
• Docket Number: No. 16114.,16114.
• Citation: 316 Ill. 357,147 N.E. 258
• Parties: ROST v. F. H. NOBLE & CO.
• Court: Illinois Supreme Court

316 Ill. 357

147 N.E. 258

ROST

v.F. H. NOBLE & CO.

No. 16114.

Supreme Court of Illinois.

Feb. 17, 1925.

Rehearing Denied with Modification April 21, 1925.

Error to First Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Francis S. Wilson, Judge.

Action by Andrew Rost, administrator, against F. H. Noble & Co. Judgment for plaintiff was affirmed by the Appellate Court (232 Ill. App. 430), and defendant brings certiorari.

Reversed and remanded.Robert F. Kolb, of Chicago, for plaintiff in error.

Ferdinand W. Jaros and Charles C. Spencer, both of Chicago, for defendant in error.

DUNN, J.

Andrew Rost, as administrator of the estate of Joseph Zembrzuski, recovered a judgment for $3,000 against F. H. Noble & Co. in an action on the case in the circuit court of Cook county for damages for the death of his intestate, which the Appellate Court affirmed, and the record is brought before us for review by a writ of certiorari awarded on the petition of the defendant in the trial court.

The declaration in two counts charged that the defendant on March 5, 1920, in Chicago, Ill., was operating a factory, and a freight elevator operated by hand, and other machinery, viz., drilling, punching, and stamping machines driven by electric power; that the deceased, who was a boy between 15 and 16 years old, was employed by defendant in operating a drill machine and in carrying, transferring, loading, and unloading boxes filled with material of great weight and hoisting the same by the elevator; that this work was such extrahazardous employment that it was dangerous to the deceased's life of limb, and he was then and there unlawfully employed at said work, contrary to the statute of the state; that by means of the neglect and default of the defendant, the deceased, while carrying, loading, and unloading boxes to and upon the elevator, was internally injured and ruptured, whereby he got strangulated hernia, from which he died on March 23, 1920.

The errors assigned question the action of the court in the admission and rejection of evidence, the giving and refusal of instructions, the overruling of a motion for a new trial, prejudicial conduct of the plaintiff's attorney and the court, and the overruling of motions made by the defendant to strike the plaintiff's evidence on the ground of variance and to instruct the jury to find the defendant not guilty.

The evidence shows that when the deceased was three years old he had a hernia, caused by the whooping cough, which caused a protrusion as large, his mother testified, as her fist. He was treated by a physician, under whose direction he wore a bandage and belt for about a year. When he quit wearing the belt the swelling was reduced to the size of a small potato, and he was apparently well. On January 15, 1920, he was employed by the defendant's superintendent after he had signed an application card in which he represented his age to be 17 years. The defendant is a corporation engaged in the manufacture of jewelry, occupying for that purpose a five-story building, in which were punch presses, drill presses, and lathes used in manufacturing. The deceased's duties consisted of soldering, working on a drill press, sometimes on a grinding machine, and sometimes he was sent on errands and carried boxes filled with lead pins weighing from 25 to 30 pounds. John Maluchnik, a fellow worker 19 years old, who was a neighbor, testified that on March 5, 1920, he had seen the deceased about 3:30 o'clock in the afternoon when Maluchnik went down from the fourth floor, where he was working, to the stock room, on the second floor. On entering the stock room he saw the deceased at the elevator laying down a box which appeared to be heavy. Maluchnik had eaten lunch with him at noon and at that time he was all right. Maluchnik next saw him at 5 o'clock, the hour of closing, when he was sitting on a chair close to the stair on the third floor, looking pale and sick. There was a time clock there, which both Maluchnik and the deceased used. The deceased waited until the rest of the workmen had got through punching time and then punched his. He and Maluchnik then left the building together, walking slowly to the street car, and went home together, making two trasfers. The deceased kept his hand in his pocket, held his side, and got on the street car slowly. When he got home the deceased went to bed and his mother treated him with hot applications that night. A doctor was called the following day and found him suffering from strangulated hernia. He was taken to a hospital,was operated on at once, and died from the hernia on March 23.

The statute which is the basis of the action is the Child Labor Act of 1917 (Laws 1917, p. 511).

[1][2] The first contention of the plaintiff in error is that the evidence does not show that the factory where the deceased was employed was in Chicago or in the state of Illinois. The declaration alleged that it was situated in Chicago, Ill., and this was a material averment, for the statute gives no right of action for a death form a wrongful act occurring out of the state. Wall v. Chesapeake & Ohio Railway Co., 290 Ill. 227, 125 N. E. 20. It was therefore necessary to prove the allegation. The testimony shows that the factory was at Fifty-Ninth and Wallace streets, but there is no direct evidence that it was in Chicago or in Illinois. We cannot take judicial notice that Fifty-Ninth and Wallace streets is in Chicago. The defendant in error insists that these is evidencefrom which it may be fairly inferred that the factory was situated in Chicago, but it is unnecessary to determine this question, for since the judgment must be reversed, on a new trial the fact as to the situation of the factory can be fully shown.

[3] Maluchnik testified that he was employed on the fourth floor of the building and on the afternoon of March 5, 1920, had to go down to the stock room, on the second floor, which was at the foot and in front of the stairs. As he entered the stock room he looked back toward the freight elevator, in the southeast corner of the building, and saw the deceased at the freight elevator laying down a box about 2 1/2 feet long and 1 1/2 feet wide, which appeared to be heavy; that the elevator was open and he was just outside it and laid down one end of the box at a time. The defendant's superintendent was called as a witness and described the condition of the second floor as it was at that time. He was then asked the question, ‘Could a person standing at the foot of the stairway on the second floor see the elevator in the rear?’ Objection was sustained to the question. The defendant's foreman of the soldering department testified that the stairs were 75 feet from the elevator, and that between them were tanks 4 feet high, the hot air drier, the kneading oven, the pillars that support the building about 12x12, a fence 10 or 12 feet high, two barrels, and a swedger. He was then asked if a person could stand at the foot of the stairs on the second floor and see a boy 5 feet 8 inches tall standing in front of the elevator in the rear. Objection was sustained to this question. Another witness, Harry N. Delano, the cost clerk of the defendant, after describing the condition on the second floor in detail, was asked, ‘Was it physically possible on March 5, 1920, for a person to stand at the foot of the stairway and see a boy 5 feet 8 inches tall bend down laying a box in front of the elevator?’ An objection was made and he was not permitted to answer.

The testimony of Maluchnik was of vital importance. Without it the plaintiff had no case. The defendant had no witnesses who were present, and therefore no way to meet this testimony except to show that the circumstances were such as to make it physically impossible for Maluchnik to see what he testified he saw. The witnesses testified to the condition of the room and to the presence of a number of obstacles to the sight, but it could not be said, in view of the testimony of a witness that he did see, that their description made it impossible for him to see. The evidence could not reproduce the situation so that the jury could determine from it the possibility of a man at the foot of the stairs seeing the elevator, and under such circumstances the witness, after detailing the obstructions which existed, should have been permitted to say whether it was possible to see from the foot of the stairs a man standing at the elevator. In Hauser v. People, 210 Ill. 253, 71 N. E. 416, the prosecuting witness, Edmundson, based his identification of the defendants largely upon the view he obtained of them while they were entering the door of the engine house and were overpowering him there. He described the engine house, the lights, and his position. It was contended, and proof was introduced tending to show, that Edmundson could have had but an imperfect and indistinct view of the persons standing at the door of the engine house. The court permitted testimony to be given of actual tests made by witnesses as to the view which could be had of persons and objects at and in the doorway under the conditions testified to by Edmundson. The court said of it that such evidence is competent if the conditions at the time testified to by the witnesses were the same as when the burglars entered the engine room, or son nearly the same that the testimony would be fairly applicable to the issue. What was proposed to be shown in this case was not an actual experiment, but it was the testimony of persons familiar with the conditions. The existence of obstructions to the vision between the two points was shown, and the witnesses having described the obstructions should have been permitted to state whether a person at the one point could see the object at the other. Such a statement is not the expression of an opinion but the statement of a fact, and the witnesses should have been permitted to answer these questions.

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