Taylor v. Felsing

• Decision Date: 10 November 1896
• Citation: 45 N.E. 161,164 Ill. 331
• Parties: TAYLOR et al. v. FELSING.
• Court: Illinois Supreme Court

164 Ill. 331

45 N.E. 161

TAYLOR et al.

v.FELSING.

Supreme Court of Illinois.

Nov. 10, 1896.

Appeal from appellate court, Third district.

Action by Henry Felsing against Proctor Taylor and others. From a judgment of the appellate court (63 Ill. App. 624) affirming a judgment for plaintiff, defendants appeal. Affirmed.J. F. Carrott, for appellants.

Govert & Pape, for appellee.

CARTWRIGHT, J.

Appellee was employed by appellants in their flouring mill at Quincy, and it was his duty to attend to the running of the machinery in the basement. He went up into a passageway between a gearing of cogwheels and the west wall of the basement, and relieved a spout for the passage of wheat, which had become choked, and, while coming down, and walking along a bridge tree four feet above the floor of the basement, he accidentally slipped and fell into the cogwheels, which were in rapid motion, and his right arm was cut off. He brought this suit, and obtained a judgment for his injury, which has been affirmed by the appellate court.

At the trial the first count of the declaration was dismissed, and the case was submitted to the jury on the amended second count. It is assigned as error that the court overruled a motion in arrest of judgment, based upon the insufficiency of this count to sustain the judgment. The ground of the claim is that it contains no averment that the act of the defendant which caused the injury was carelessly and negligently done. The facts alleged were that there had been a clutch pulley with a lever attached on the main shaft which turned the gearing of cogwheels, and by this means the cogwheels could be thrown out of gear at the pleasure of plaintiff, and all danger in going about the machinery and cleaning the spouts averted; that, a few weeks before the accident, said clutch pulley became out of repair, and was removed temporarily to be repaired, and a stiff pulley was temporarily put on the shaft, so that the cogwheels could not be thrown out of gear; that the removal of the clutch pulley and the substitution of the stiff pulley rendered the service of plaintiff more hazardous; that plaintiff repeatedly, and shortly before the injury, objected to the absence of the clutch and the use of the stiff pulley, and requested defendants to have said clutch pulley replaced; and that defendants promised plaintiff to have it replaced, and he, relying on said promise, continued in the service, and in the performance of his duties, for a reasonable time, to permit the performance of said promise by defendants. This count set out, not only the disregard of a positive duty owing by the defendants to the plaintiff, created by the facts averred, but also an agreement of the defendants to remove the cause of danger, by which agreement defendants took upon themselves the responsibility of injuries resulting from such dangerous condition to the plaintiff while in the exercise of ordinary care. Whether the liability rests upon the disregard of duty, or upon the contract to replace the clutch pulley, it was not necessary that either such disregard or failure to comply with the agreement should be characterized in the declaration as careless or negligent. If there was any disregard of duty, it was necessarily negligent, whether so averred in the declaration or not. Where facts are stated which in law raise a duty, and the disregard of duty and consequent injury are properly averred, the count will be regarded as sufficient. The pleader must state facts from which the law will raise a duty, and show an omission of the duty and resulting injury; but, when that is done, an allegation that the act was negligent is unnecessary. Ayers v. City of Chicago, 111 Ill. 406; Railroad Co. v. Hawthorn, 147 Ill. 226, 35 N. E. 534. The motion in arrest was properly overruled.

The defendants by their thirty-eighth instruction asked the court to direct the jury that, under the law as applied to the facts, plaintiff was not entitled to recover, and the jury should find a verdict for the defendants. We do not care to review the evidence. It tended to prove the cause of action. The instruction was properly refused.

The first five instructions given on behalf of the plaintiff are complained of. We think there is no objection to any, unless it be the second, and that there was no reversible error in giving that one. The objection made to the first is that it permits the plaintiff to recover upon a mere preponderance of the evidence in his favor, while it is insisted that the law required him to prove his case by a clear preponderance. The law only requires that a preponderance of the evidence should be in favor of the plaintiff. Mitchell v. Hindman, 150 Ill. 538, 37 N. E. 916. The third relates to the credit to be given to different witnesses, and it is objected that it is too broad, as permitting the jury to reject the testimony of a witness although corroborated by other witnesses or by circumstances in evidence. The criticism, as applied to this instruction, we think, is unfounded. If the second is subject to the exception taken to the third, and also wrong in requiring, instead of permitting, the jury to reject the testimony of a witness who has knowingly testified falsely to some matter, as it is insisted in the argument, we cannot see that any harm could have resulted to the defendants in this case. The second instruction given at the request of defendants was on the subject of the credibility of witnesses. It was very full, and correctly stated the rules for judging of credibility, among other things directing the...