93 Ill. App. 57 | Ill. App. Ct. | 1901
delivered the opinion of the court.
Counsel for appellant contends that no negligence of appellant is shown; that the declaration does not state a cause of action; that the verdict was not rendered by the jury sworn and impaneled to try the cause; that incompetent evidence was admitted, and that the verdict is excessive.
It appears'from the evidence that the carriage and bucket described in the preceding statement ran down an inclined plane, formed by the lowering of the apron, until arrested by the stopper, and that this occurred each time the empty bucket was conveyed by the carriage to the stopper for the purpose of lowering it into the vessel. There was, therefore, a succession of heavy blows against the stopper, the force of each blow being measured by the momentum of the carriage and bucket.
The stopper, when the ore was being unloaded, was over the hatchway beneath which the men were at work loading ore into the empty bucket, when lowered, and hooking the bucket when filled, onto a hook attached to the hoisting apparatus. Under the circumstances, the jury were warranted in inferring that it was appellant’s duty to inspect the hoist frequently, and especially before commencing to unload a vessel. Half the break in the bolt, which was an important part of the stopper, was an old break, as indicated by the fact that it was rusty. The rusty appearance of the old break was evidence that it must have occurred before appellant commenced to unload the vessel which was being unloaded at the time of the accident. The witness who testified to the old break discovered it by merely looking at the bolt. The jury, therefore, were fully warranted in inferring that if there had been proper inspection the old break would have been discovered and the accident would have been avoided.
Appellant’s counsel urges that the bolt was covered with grease, and for this reason and because of its location, as above described, it could not be seen. But we regard these circumstances as wholly insufficient to excuse appellant.
Appellant’s counsel thus states his objections to the declaration :
There is no allegation that the defendant knew that the piece of iron in question was weak and unsubstantial.
There is no allegation that the defendant, had it used ordinary care, ought to have known that said piece of iron was weak and unsubstantial.
There is no general allegation that the defendant £ negligently did or failed to do anything which' caused the accident.’ ”
The duty of appellant in the premises is thus averred in the declaration:
“ It was then and there the dutjr of the said Illinois Steel Company, defendant, to maintain said tubs, blocks, tackle, hoisting engine and apparatus to start and stop the hoisting of said tubs with ore in them in good order and condition and to have the same properly inspected so as to make sure that said machinery and all parts thereof were in good order and reasonably sufficient in strength, material and form, safely to do the work expected of them, in the hoisting of said ore out of said vessel.”
The breach of duty is alleged as follows :
“ And complainant alleges that said piece of iron fell because defendant had allowed the same to become old and worn out, corroded with rust and so weak and unsubstantial that it was unfit to be used in and about said business. That defendant neglected to have the said piece of iron inspected so that its defects might have been ascertained and provided against or supplied, so that the injury to the complainant would not have occurred.”
The declaration states a cause of action, is good in substance; and not obnoxious to the objections of appellant’s counsel. The original record showed that one William II. Mitchwell was one of the jurors impaneled. A paper purporting to be a verdict and to be signed by jurors is in the record and is signed Wm. H. Witherell. The original record did not show a juror of that name. But the trial court found that William II. Witherell and not Wm. II. Mitchwell was impaneled a juror, that the mistake in the original record was by misprision of the clerk, and made an order amending the record accordingly. The common law record shows that the jury which was impaneled rendered the verdict. The recorded verdict, and not the paper relied on by appellant, controls. Brewing Co. v. Hermann, 88 Ill. App. 285; Auerbach v. Arguelles, 80 Ill. App. 167, and cases there cited.
The witness Peter Albrecht testified in his examination in chief to the earnings of appellee’s intestate. Albrecht was one of the men engaged in unloading the vessel. On his redirect examination he was asked how much he, the witness, earned on an average every two weeks, and answered, “ Sometimes forty-eight, fifty, fifty-five dollars, every two weeks.” We think the question how much this witness earned was irrelevant, but can not perceive how it could prejudice appellee, because the witness testified that the deceased earned in the work he was engaged in, two dollars per hour, and the jury could not have been misled into confusing the earnings of the deceased with those of the witness.
Appellee was permitted to testify, over appellant’s objection, that the deceased left him surviving three children, one of whom was about six and another about seven years of age. We think this evidence was improperly admitted. However, the only prejudicial effect which it could have as to the appellant would be to increase the damages, to prevent which the court gave this instruction:
“The jury are instructed that if under the instructions of the court and the evidence in this case thejr should find the defendant guilty, they should not, in assessing damages in favor of the plaintiff, allow anything for mental suffering, or damages of any kind, pecuniary or otherwise, suffered by the widow or next of kin of the said John Ostrowski, but on the contrary such damages should be limited by the amount of damages which the preponderance of the evidence shows was suffered by the said John Ostrowski prior to his death.”
We are of opinion that in view of the foregoing instruction the jury could not have been misled into assessing any damages except such as appellee’s intestate would, in the opinion of the jury, have been entitled to recover had he survived. In City of Joliet v. Conway, 119 Ill. 489, the court, referring to a similar instruction, say:
“ In this case there is no attempt to show that the family were dependent upon the plaintiff for support, care or maintenance, and the jury, we think, could not have so understood it, especially in view of the fact that the instructions expressly limit the right 'of recovery to such damages as resulted to the plaintiff alone.”
The piece of the belt to which the nut was attached, and which is described in the preceding statement, fell from a height of thirty feet on the right hand of the deceased, while he was engaged in hooking a full tub or bucket onto the hoisting apparatus. The surgeon who attended the deceased and examined his injuries testified as follows:
“The man was suffering from a lacerated and contused wound between the small and third finger of the right hand, extending about half an inch by three-quartersj a fracture of the first and second metacarpal bones of the right hand, crushed muscles of the whole back of the hand, fracture of the outer condyle of the radius, contused bruises of the whole fore-arm, and this examination took place about eight days after the accident. The lacerated portions of the hand had to be freely incised, getting from same about two drams of pus. In my opinion there would not be a complete recovery from that injury within the space of six or seven months. During that time, in my opinion, he would not be able to work with that hand.”
Another witness testified that the deceased could not work after the injury. He was injured on the morning of June 10, 1897. He was drowned February 16, 1898, more than eight months after the accident, and the evidence tends to show that during that time he was unable to work. We do not consider the damages excessive. The judgment will be affirmed.