Variety Mfg. Co. v. Landaker

• Decision Date: 18 April 1907
• Citation: 81 N.E. 47,227 Ill. 22
• Parties: VARIETY MFG. CO. v. LANDAKER.
• Court: Illinois Supreme Court

227 Ill. 22

81 N.E. 47

VARIETY MFG. CO.

v.LANDAKER.

Supreme Court of Illinois.

April 18, 1907.

Appeal from Appellate Court, First District.

Action by Minne Landaker, administratrix of Charles Landaker, against the Variety Manufacturing Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

Bolen & Stewart, for appellant.

Elmer & Cohen and E. C. Wood, for appellee.

HAND, J.

This was an action on the case commenced in the superior court of Cook county by the appellee, against the appellant, to recover damages for an injury alleged to have been sustained by Charles Landaker, the intestate of the appellee, through the negligence of the servants of the appellant, which resulted in the death of said Landaker. The jury returned a verdict in favor of appellee for $5,000, upon which the court rendered judgment after overruling a motion for a new trial, which judgment was affirmed by the Appellate Court for the First District, and a further appeal has been prosecuted to this court.

Charles Landaker, in company with Charles Erhart, was at work for the Eaton & Prince Elevator Company putting in an elavator in a three-story brick building which the Illinois Moulding Company was constructing in the city of Chicago. The elevator shaft was inclosed by brick walls, with doors opening through the walls on the east and west sides of the shaft on each floor of the building. Landaker and his helper used two planks, 16 feet long, which they laid across the shaft at each floor from door to door for a scaffold upon which to work. The planks were left in position on the second floor by Landaker and his helper, and while they were at work upon the third floor the servants of the appellant moved the planks endwise, so that they might slide the doors up and down which they were fitting into the elavator shaft on the second floor. When they completed their work upon that floor, they left said planks in such position that only one end of the planks rested upon the elavator walls. When Landaker and his helper returned to their work upon the second floor, Landaker stepped upon one of the planks without notice that its ends did not rest upon both sides of the shaft, and it tipped up, and he and the plank fell to the bottom of the shaft, and the femur bone of his left leg was broken near his body. He was treated by two physicians, who were in regular practice in the city of Chicago, and who were experienced in the practice of their profession. The ends of the bone would not unite, and some months after the injury the physicians who had charge of the case cut the leg open and fastened the ends of the bone together with wires. The operation was not successful, although not an unusual one, and Landaker died a few days thereafter. He left, him surviving, Minnie Landaker, as his widow, who was appointed administratrix of his estate, and three minor children, all of whom were living at the time the suit was brought.

It is first contended that the appellant, through its servants, was not guilty of actionable negligence, and that the intestate of appellee was guilty of such contributory negligence that there can be no recovery. The questions of negligence and contributory negligence are questions of fact, and this court does not determine questions of fact in actions at law. In cases of this character, where a party defendant desires to preserve the questions whether the evidence fairly tends to establish a cause of action or a defense, for review in this court, as questions of law, it can...