Weber Wagon Co. v. Kehl

• Decision Date: 18 January 1892
• Citation: 139 Ill. 644,29 N.E. 714
• Parties: WEBER WAGON CO. v. KEHL.
• Court: Illinois Supreme Court

139 Ill. 644

29 N.E. 714

WEBER WAGON CO.

v.KEHL.

Supreme Court of Illinois.

Jan. 18, 1892.

Appeal from appellate court; first district.

Action for personal injury by Peter Kehl against the Weber Wagon Company. Plaintiff had judgment, which was affirmed by the appellate court, and defendant appeals. Affirmed.

Wing, Stough, Carter & Qualey and S. S. Page, for appellant.

Ela & Grover, for appellee.

CRAIG, J.

This was an action brought by Peter Kehl against the Weber Wagon Company to recover for the loss of hand cut off by the machinery of the defendant while he was in the service of the company as a day laborer. It appears from the evidence that plaintiff, in the month of February, 1887, entered the employ of defendant company, which owned and operated a wagon factory at Auburn park in the city of Chicago. His duty in his employment until August, 1887, was the operation of a wood-working machine called a ‘matcher.’ In August the factory was destroyed by fire, and was rebulit and ready for operation about December 1, 1887. During December appellee operated a shaper on the first floor of the factory, and when the shaper upon the second floor (where the injury occurred) was ready for use appellee was employed to run it. In rebuilding the factory the second floor was constructed of hard maple flooring, planed smooth. It also appears that the floor in front of the shaper by constant use became more smooth and became slippery. In view of the condition of the floor about the last of February, 1888, as the evidence tends to show, Kehl complained of it to Jeffery, defendant's foreman, who promised ‘to fix it.’ Two weeks later, Jeffery's promise not having been complied with, Kehl again complained to Weber, appellee's superintendent, who said he would see to it. Again, some two weeks before the injury, Kehl complained to the foreman, Jeffery, and Jeffery again promised to remedy the defect. Nothing was, however, done to the floor to remedy the difficulty, and on the 12th day of April, 1888, while plaintiff was operating the machinery in shaping a wagon-hound, he slipped on the slippery floor, his left hand was caught in the knives of the shaper, and cut off. It is apparent from the evidence that, while the shaper is an old and valuable machine, as much so perhaps as any wood-working machine in use, still it is regarded as a dangerous machine. It is thus descriped: It has an iron top or table, of the dimensions of about 5 feet by 4, which top or table is supported by an iron column or leg. This table stands about 32 inches in height from the floor. There are two openings or holes in the table, some 28 inches apart; and up through these holes project spindles, which have their attachments or bearings on the sides of the iron column of the leg of the machine. At the lower end of the spindles are pulleys, about which the bands go which turn the spindles. To the ends of the spindles that project above the level iron table the knives are fastened. The parts of the spindles which project above the table, and to which the knives are fastened, are called ‘heads.’ The length of the spindles which stand perpendicularly along-side the column or leg of the machine is about 24 or 26 inches. The pulleys which the belts go around are about 12 or 14 inches below the table. A great variety of knives are used. They consist of a flat piece of steel, say from one-quarter to five-eighths of an inch in thickness, and are held by two collars. The collars are provided with grooves, which are called ‘V-grooves' on account of their shape. When the knives are set in the grooves and the spindles whirl, the knives rotate, with the bevel of the knives out. The wood is shaped, cut, or planed by being held against these whirling knives, which turn out with the speed of 4,000 or 5,000 revolutions per minute. The wood is laid by the operator upon the table, and moved forward or pulled backward against the revolving knives by him. The spindles are a little closer to one edge of the table, which is called the ‘front’ of the shaper, and by the front the operator commonly stands. As to the fact that plaintiff received the injury there is no dispute, but as to the manner in which the injury occurred there is a conflict. In the main, the plaintiff charged in his declaration that the floor in front of the shaper was hard maple; that he called the attention of appellant's foreman and superintendent to said floor, and that they promised to put down a pine floor in its place; and that he, by reason of such promise, continued to operate the shaper, and that, while operating said shaper with due care, he slipped upon said hard maple floor, and fell into the knives, and lost his hand. In the circuit court plaintiff recovered a verdict and judgment for $2,500, which was affirmed in the appellate court, and the defendant, for the purpose of reversing the latter judgment, has prosecuted this appeal.

Numerous questions have been raised and discussed in the argument, and, while it would not be possible to consider at any length all the questions which have been argued without extending this opinion to an unusual length, we will endeavor to consider those questions deemed most important. The witness Jeffery testified that his duties while employed in the shops of defendant were ‘to see that the stuff came in for the wagons and came out in proper shape.’ Then counsel for plaintiff asked this question: ‘You had general superintendency, as I understand you, of the wood-working department?’ This was objected to, overruled, and the decision relied upon as error. If it was the duty of the witness, as he had already testified, to see that proper material was furnished to the shop for the wagons, and to see that the material came out in good wagons, it must be apparent that he exercised the powers of a general superintendent; but, whether he did or not, the only objection to the question is that it was leading, and such questions, as a general rule, are so much within the discretion of the court that we would not feel inclined to hold that the utterance of a leading question alone should reverse a judgment. It is next claimed that the court erred in allowing plaintiff to testify that he was not careless at the time he received the injury. No objection was interposed to the question when it was asked, and on this ground the court denied a motion to strike out the answer to the question. But, conceding that the court erred in this regard, plaintiff's counsel allowed the answer to be striken out; and, as counsel obtained by consent all that they asked of the court by the motion, we do not see that they have any ground for complaint.

It is also claimed that it was error to allow the plaintiff to testify that he had not been able to find work since his injury. The fact, of itself, that plaintiff was not able to fine work, could not be regarded as an element of damages in a case of this character; but, upon looking into the record, it will be found that the reason plaintiff could not find work was on account of his limited capacity to perform labor on account of his injury. If plaintiff was incapacitated for labor on account of the injury, that was an element of damages proper for the consideration of the jury.

Complaint is also made that plaintiff was allowed to testify that the nailing of strips on the floor in front of the shaper was impracticable. It was proper to show that the floor as constructed was unsafe, and we perceive no reason why a witness who had the proper experience might not testify what would or would not remedy the difficulty.

It is also claimed that the court erred in allowing the witness Webster Sheers to testify that Jeffery directed him to put down a soft floor. The witness was a carpenter in the employ of the company, and if he was directed by Jeffery, or any other person in charge of the works, to change the floor, that was a circumstance to be considered, in connection with the other evidence, whether the floor as laid and used was safe. It is also insisted that the court erred in permitting evidence that the floor was changed after the accident, as we understand the evidence introduced on this point was stricken out or withdrawn except the cross-examination of the witness Swigert, who said: ‘Answer. Yes, sir; there was a soft-wood floor put down by Mr. Sunday, under his own direction. He proposed it, and asked Mr. Weber about it. I believe he gave permission to put it down. Mr. Sunday, was running a shaper at that time.’ The appellate court, in considering this evidence, said: ‘Evidence that the floor was changed after the accident ought not to have been admitted, (Hodges v. Percival, 132 Ill. 53, 23 N. E. Rep. 423,) but the evidence as to this was of such a character that it was harmless, being, not that the defendant changed the floor, but that the new employe, Mr. Sunday, had fixed it to suit himself, as is customary with shapers; some liking one thing and some another.’ We think this question was properly disposed of by the appellate court. While the evidence was not strictly admissible, it was of such a character that it could not injure the defendant.

Objection is made to the opinion of witnesses to the effect that a hard-wood floor became slippery by use, and, that a soft-wood floor did not. The witnesses who were allowed to give their opinion were those who had experience in the use of a shaper and who had acquired peculiar skill in that direction, and we perceive no objection to their evidence.

The pattern used by the plaintiff at the time of the accident was preserved, and offered in evidence, with the notch or cut in it that was made at the time; and it is contended that the court erred in excluding evidence offered by defendant of experienced shaper hands...