The Camp Point Mfg. Co. v. Ballou

• Decision Date: 31 January 1874
• Citation: 71 Ill. 417,1874 WL 8689
• Parties: THE CAMP POINT MANUFACTURING COMPANYv.CHARLES BALLOU, Admr.
• Court: Illinois Supreme Court

71 Ill. 417

1874 WL 8689 (Ill.)

THE CAMP POINT MANUFACTURING COMPANY

v.CHARLES BALLOU, Admr.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

Messrs. WHEAT & MARCY, for the appellant.

Messrs. WHEAT, EWING & HAMILTON, and Mr. HENRY L. WARREN, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action brought to recover for damages occasioned by the death of plaintiff's intestate, in consequence of the bursting of an emery-stone, at which he was engaged, in the employ of the defendant, in grinding and polishing irons used in the construction of agricultural implements. The stone was mounted on a wooden frame, and moved by a steam engine, which propelled the other machinery in the defendant's factory. It turned upon an iron axle, and was supported and held to its place by means of iron clamps, or “flanches.” which were tightened upon the stone by nuts turning on a screw thread, cut on the axle. The engine had a governor attached, the office of which was to regulate the motion of the engine.

It was claimed, by the declaration, that the death of the deceased was caused by reason of the insufficiency of defendant's machinery, in three respects:

1. That the governor was defective, so that it could not properly control and regulate the speed of the engine, whereby the engine worked unsteadily and irregularly, and caused the emery-stone to revolve with irregular and varying velocity, by means whereof the stone, while revolving, was fractured and broken in pieces.

2. That the clamps upon each side of the stone, with which it was clasped and braced, were of a size and diameter too small to properly hold and strengthen the stone, and prevent it from breaking into pieces while being used.

3. That a strong, firm and steady frame was requisite for the purpose of supporting and holding the stone while being used, so as to prevent the same from being shaken and jostled, and that the frame was insufficient in that respect.

The plaintiff recovered in the court below, and the defendant appealed.

It is assigned as error that the court erred in giving and refusing instructions.

It is objected to the second and fifth instructions, given for plaintiff, that they tell the jury, in effect, that the plaintiff may recover if the accident was caused by any defect or insufficiency of the machinery used by the defendant. There was evidence given of several defects in the machinery, not alleged in the declaration, and the instructions should have confined the right of recovery to the defects specified in the declaration. It is insisted, that the error is obviated by other instructions for the plaintiff, which predicate the right of recovery on the deceased having been killed by the defendant's negligence, in manner and form as alleged in the declaration. But, after having been instructed that the plaintiff might recover if the accident was caused by any defect in the machinery, the jury would not feel called upon to search through the various counts of the declaration to find out what particular defects were therein complained of. That would be unimportant, if there could be a recovery on account of any defect. Nor does defendant's instruction, restricting the right of recovery to the causes of action alleged in the declaration, cure the error. Chicago, Burlington and Quincy Railroad Co. v. Payne, 49 Ill. 500. It is there held, that it is not sufficient that a part of the instructions contain a correct exposition of the law, if it is incorrectly announced in others.

It is further objected, to the second instruction, that it is not qualified by reference to the knowledge which the deceased was shown to have had of the alleged defects.

The doctrine upon this subject appears to be, that an employee can not recover for an injury suffered in the course of the business about which he is employed, from defective machinery used therein, after he had knowledge of the defect, and continued his work, it being held, that, upon becoming aware of the defective condition of such machinery, he should desist from his employment; but if he does not do so, and chooses to continue on, he is deemed to have assumed the risk of such defects, at least when he had not been induced by his employer to...