Schaffner v. C.F. Massey Co.

• Decision Date: 10 December 1915
• Docket Number: No. 9990.,9990.
• Citation: 110 N.E. 381,270 Ill. 207
• Parties: SCHAFFNER v. C. F. MASSEY CO.
• Court: Illinois Supreme Court

270 Ill. 207

110 N.E. 381

SCHAFFNER

v.C. F. MASSEY CO.

No. 9990.

Supreme Court of Illinois.

Oct. 27, 1915.

Rehearing Denied Dec. 10, 1915.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Adelor J. Petit, Judge.

Action by Albert Schaffner, administrator, against the C. F. Massey Company. Judgment for plaintiff was affirmed by the Appellate Court (189 Ill. App. 391), and defendant brings error. Affirmed.

Holt, Cutting & Sidley, of Chicago, for plaintiff in error.

Francis X. Busch and Jarold Svoboda, both of Chicago, for defendant in error.

CRAIG, J.

Defendant in error, Albert Schaffner, administrator of the estate of Frank Kosatka, deceased, brought suit in the circuit court of Cook county against plaintiff in error, the C. F. Massey Company, to recover damages for negligently causing the death of Kosatka while in its employ. The declaration consisted of three counts. Each count charged that plaintiff in error furnished the deceased with a certain paint with which to paint the inside of certain battery wells which it knew, or in the exercise of ordinary care should have known, contained substances that gave off poisonous gases dangerous to life if confined in a narrow space without outside air, and that the deceased did not know of or appreciate the danger to which he was thus exposed in working in battery wells with such paint. The specific negligence charged in the first count was in directing the deceased to paint the insides of battery wells with such paint, where the fumes would be confined without fresh air; in the second count, the failure to warn the deceased of the poisonous nature of the gas given off by the paint and the danger of being poisoned by the fumes from the same; and, in the third count, the failure to make reasonable rules and regulations to protect the deceased after sending him into the battery well, and such rules and regulations as would enable him to notify a person on the outside of his condition in case he should be overcome by the fumes from such paint. A plea of general issue was filed to the declaration, and the cause proceeded to trial before a jury, resulting in a verdict and judgment for defendant in error for $5,000. On appeal to the Appellate Court for the First District the judgment of the circuit court was affirmed. A writ of certiorari was allowed by this court, and the record is now in this court pursuant to the mandate of such writ.

The grounds urged for a reversal of the judgment are a lack of proof that the deceased was in the exercise of due care for his own safety at the time of his injury, the giving of improper instructions and the refusal to give proper instructions, and improper remarks made by the court in the course of the trial.

Plaintiff in error is engaged in the manufacture of concrete battery wells used in the signal service of railroads. These wells are cylindrical in form and resemble a large milk bottle in shape. They are about 4 feet 10 inches in diameter, with perpendicular walls 5 feet 5 inches high. Extending on avove this is a shoulder about 10 inches in height, which tapers inward, and still above this is the neck of the well, 18 inches in height. The opening in the top is from 28 to 30 inches in diameter. There is another opening, 2 1/2 inches in diameter, in the side of the neck, extending downward into the well, through which the electric wires will pass into the well. The tops of the wells were inclosed with hinged covers made of wood and covered with galvanized iron. The wells are lined with asphaltum felt. The insides were not painted, except for but one company, the Pennsylvania Railroad Company, which required the bottoms to be painted with asphaltum paint-a black paint commonly used in painting ironwork, such as bridges, fire escapes, etc. The base of the paint is gilsonite, a mineral substance, and was purchased by the barrel, and was so thick that it had to be thinned down with gasoline or benzine before using. The evidence shows that a paint such as this gives off fumes, which, when used in a receptacle such as a battery well, where the fumes are confined and not allowed to mix with fresh air, are poisonous and dangerous to human life. The deceased was between 18 and 19 years of age and had been employed by plaintiff in error on two different occasions. His last employment was during the 4 or 5 months immediately preceding his death. During this time his work had consisted in putting covers on the battery boxes and painting the same. Up to the time he went into the battery well in question he had never painted on the inside of any of the wells or been warned of the danger of being overcome by the fumes of the paint in using it on the inside of battery wells, where the fumes given off would be confined in a narrow space without fresh air. On the afternoon of August 11, 1912, the deceased, while working as a painter in the shop of plaintiff in error, went into one of these wells by means of a ladder and proceeded to paint the inside of the well. Whether or not he did so under specific orders of the foreman was a disputed question of fact on the trial. The proof, however, on this question is clear that he did have some talk with the foreman about painting the inside of the battery well, and that he thereafter went to the paint barrel,filled a can with paint, mixed with it some gasoline, and walked to the battery well, where he was last seen alive with his hand on a ladder leaning against the well. About 7 o'clock the next morning he was found dead in this well. The entire walls of the well had recently been painted, and the empty pail and brush lay overturned at the bottom of the well. The bottom of the well had not been painted. It is not disputed that death was from asphyxiation, caused by the gasoline fumes given off by the paint, or that the deceased was not warned of the poisonous nature of the fumes given off by such paint when confined in a narrow space such as a battery well.

The question as to whether or not the deceased was ordered to go into the well, and the character of such order, was a controverted question of fact on the trial, which is settled against the contention of plaintiff in error by the verdict of the jury and the judgment of the Appellate Court affirming the judgment of the trial court. Mills v. Larrance, 217 Ill. 446, 75 N. E. 555;Deel v. Heiligenstein, 244 Ill. 239, 91 N. E. 429;Bullis v. City of Chicago, 235 Ill. 472, 85 N. E. 614;Dukeman v. Cleveland, Cincinnati, Chicago & St. Louis Railroad Co., 237 Ill. 104, 86 N. E. 712;Tebow v. Wiggins Ferry Co., 241 Ill. 582, 89 N. E. 658. Therefore, so far as this question is concerned, it must be assumed that in going into the well the deceased did so under the orders of the plaintiff in error.

[2] It is insisted that the evidence fails to show that the deceased was in the exercise of due care for his own safety at the time he was killed. This contention is based upon the facts that no one saw him after he went into the battery well, and that there was testimony tending to show that only the bottom of the well was to be painted, which required but a few minutes, and that in painting the sides of the well the deceased did what he was not directed to do, and remained in the well a much longer time than was necessary or was contemplated by his superiors in performing the work it was intended he should do. From this it is argued the deceased was guilty of contributory negligence of such a character as to bar the cause of action for his death. There is a conflict in the evidence as to whether or not the bottoms and sides of the wells or only the bottoms were usually painted, and also as to the nature of the order given to the deceased. The determination of this question was for the jury. Their decision of it is not open for review in this court. Chicago City Railway Co. v. McDonough, 221 Ill. 69, 77 N. E. 577. There is also evidence tending to show that it would take anywhere from 11 to 30 minutes to paint the bottom of a well, and that if the sides were also painted it would necessarily take a much longer time, and that the harmful effects of such fumes might be felt in a very few minutes by one working in such an inclosed space; the length of such time depending to a large extent upon the thickness of the paint mixture being used. The thinner the mixture the more gasoline would be used, and the amount of gas given off in painting a given space would be greater. If the jury believed the sides as well as the bottoms of the wells were frequently painted, and that the deceased was directed by the foreman to paint the ‘inside of the well,’ as he attempted to do (and the evidence on the part of the defendant in error fully warranted them in so believing), they were clearly right in finding that contributory negligence could not be imputed to deceased for attempting to execute such order, unless the danger was so obvious and patent that no person of ordinary prudence would have undertaken the work. Western Stone Co. v. Muscial, 196 Ill. 382, 63 N. E. 664,89 Am. St. Rep. 325;Hartrich v. Hawes, 202 Ill. 334, 67 N. E. 13. The evidence further shows the deceased had no experience in painting the insides of the wells, and was not warned of the danger to which he would be exposed in so doing, and, as his previous use of this paint had always been in the open air, where the fumes were not confined or their harmful effects felt, it may well be assumed that his previous experience with it was such as to lead him to believe, even had he noticed the fumes were stronger while painting the inside of the well, that they were not such as to render them dangerous to life or injurious to his health. The deceased is not chargeable with contributory negligence or with having assumed the risk merely because he knew that fumes were given off by the paint, unless he also knew, or by the exercise of ordinary care and prudence should have...