164 Ill. 58 | Ill. | 1896
delivered the opinion of the court:
A number of reasons are urged by appellant for the reversal of this judgment, which, to the extent it is consistent or proper for this court to consider, will be noted.
The question as to whether the decedent was guilty of contributory negligence resulting in the injuries received by him is a question of fact, which has been set-tied adversely to appellant by the special findings of the jury, its verdict, and by the judgment of the Appellate court. There was, without doubt, evidence tending to show that he was exercising due care and caution at the time of the injury. There is an absence of evidence that his attention was in any way called to "the unsafe condition of the fastenings of this wringer. He was the salesman and superintendent, and was absent from the building much of the time, taking orders. The eighth special finding submitted to the jury was as follows: “Could the deceased, Stafford N. Brady, have avoided the accident complained of, which resulted in his death, by the exercise of ordinary care and prudence?” And to which the jury answered, “No.” No objection was made before the trial court that this finding was unsupported by the evidence, nor was it urged in the motion for a new trial, and it cannot, therefore, be urged now. Avery v. Moore, 133 Ill. 74; City of Aurora v. Rockabrand, 149 id. 399; Pennsylvania Coal Co. v. Kelly, 156 id. 9.
The same consideration as above is also applicable to appellant’s suggestion and argument that Brady, the decedent, was at the time of the injury a mere volunteer in assisting Hayton, the agent of appellant, and was under no obligation to do this work. This fact was also submitted to the jury by the seventh special finding and found adversely to appellant. The question cannot now be raised here for the reason above stated.
It is urged by appellant that even if it was guilty of negligence in not sufficiently bolting the wringer to the floor, yet the acceptance of the machine by Wilson & Fuchs, its purchasers and the employers of decedent, would relieve appellant from any liability. If decedent had been injured while in the act of operating the wringer for his employers an entirely different question would have been presented for our consideration. But such a case is not before us. At the time of the injury resulting in the death of decedent he was not engaged in any line of employment for Wilson & Fuchs, but, as the jury in the trial court have found, he was, at the request of appellant’s machinist, assisting him in a line of work which was to be performed by appellant.
We are referred to a line of authorities as indicating that a liability‘ does not exist against a manufacturer who has sold his machine and which has been accepted by the purchaser, in favor of an employee of the purchaser who has been injured by some defect in the machinery. The case of First Presbyterian Congregation v. Smith, 26 L. R. A. 504, together with the cases there annotated, is particularly relied upon by appellant as supporting this proposition. The majority of the cases referred to are those holding that no liability exists against a contractor of work in, favor of one injured by a defect therein after the work has been turned over to and accepted by the owner. This general rule is well established. (Curtin v. Somerset, 140 Pa. St. 70; Fitzmaurice v. Fabian, 147 id. 199.) An exception to this rule is in cases where a structure or the subject matter of the contract is to be used for a particular purpose requiring security for the protection of human life. The particular question, however, as to whether a manufacturer who has sold and delivered his article is liable for a defect to a third person injured, and with whom there is no privity, we do not have before us in this case. If it be conceded that the delivery of the wringer had been made by appellant to Wilson & Fuchs and accepted by them, still, at the time of the injury the machinery was again under the control of appellant for the purpose of making repairs. The deceased was not injured while the machinery was being operated by Wilson & Fuchs. Where machinery is originally defective when delivered, and accepted by the owner, and after such acceptance the contractor or manufacturer again, either by himself or agent, is in charge of the machinery for the purpose of making repairs or improvements, he must be held liable for an injury to a third person from such defect or from his negligence. In Schubert v. Clark, 15 L. R. A. 818, it is held, in substance, that where a manufacturer of goods not ordinarily dangerous negligently constructs an article which is to be placed on the market for sale, and knowing its defects permits it to go out in the course of trade, he will be liable to a person injured thereby who was not aware of the defective condition, from the fact of its being concealed. In the present case appellant had knowledge of the insecure and unsafe fastenings of the wringer, and had knowledge also of the fact that its method of operation was being changed from hand to steam power, which would cause an additional strain to be put on this machine. Appellant was there for the especial purpose of making this change. The machine, for the time being, was under its control, and the deceased, at its request and without knowledge of the dangerous condition of the fastenings, was assisting the agent df appellant, and thus received the fatal injuries. These are all facts which are established by the trial and Appellate Courts and by which we are bound. ■ They were sufficient on which to base the verdict returned and the judgment of affirmance in the Appellate Court.
It is also assigned as error that the court modified the ninth instruction asked by appellant, and improperly refused to give to the jury certain other instructions asked by it.' It would extend to an undue length this opinion to fully note these instructions with their objections. For the reasons set forth in this opinion there was no error in the action of the trial court in giving or refusing instructions.
Our conclusion therefore is that there is no reversible error in the record, and the judgment of the Appellate Court is affirmed.
Judgment affirmed.
