Lead Opinion
delivered the opinion of the court.
This is an appeal from a judgment for $10,000 rendered after verdict against Frank Moll (doing business as New City Iron Works) by the superior court on April 11, 1925, in an action for damages under the Injuries Act [Cahill’s St. ch. 70] for negligently causing the death of plaintiff’s intestate. The accident happened on February 15,1923, and the death resulted one week thereafter. In addition to Frank Moll, the action was commenced against Rowley Brothers Company, Chicago & Western Indiana Railroad Company, Belt Railway Company of Chicago, Milk Producers’ Marketing Company, and Milk Producers’ Co-Operative Marketing Company, all corporations, and Henry L. Fiene. At the beginning of the trial in March, 1925, plaintiff dismissed the suit as to Rowley Brothers Company. At the close of plaintiff’s evidence the court instructed the jury to find all the other defendants, except Frank Moll, not guilty, and at the close of all the evidence the jury returned a verdict finding Moll guilty and assessing plaintiff’s damages at $10,-000.
The two defendant railroad companies were constructing a freight house on the north side of Grand Avenue, east of Cicero Avenue, Chicago. Rowley Brothers Company was the general contractor, and Frank Moll the subcontractor for the furnishing and erecting of the structural steel work, under written contract dated January 20, 1923. He had been asked to push his part of the work as fast as possible, and, on January 26, Herman Droege, his employee, delivered by truck 14 steel I-beams at the premises. The west end of the freight house, then being constructed, was about 100 feet east of Cicero Avenue, and the building extended 300 or 400 feet towards the east. Between the curb and the sidewalk there was a space or parkway about 6 feet wide. When Droege arrived at the premises with the steel he asked Rowley Brothers’ foreman, then in charge of the work, where he should unload it and the latter told him “any place he wanted to.” He drove his truck along the curb in front of the proposed building and so close to the curb that the wheels scraped it; then removed the stakes on one side of the truck and “threw the steel off” parallel with the curb onto the parkway so that the beams were piled “two high,” one upon another, and so that small spaces intervened between their ends. After the unloading he presented the.delivery tickets to said foreman and the latter signed them. Prior to the accident the steel was not moved thereafter by either Rowley Brothers Company or Moll, and it remained undisturbed in the positions as placed. All witnesses agree that no portion of any of the beams projected over the curb into the street — some testifying that the beams were about even with the curb and others that they were from one to three inches inside of the curb line.
On February 15, 1923 (20 days after the steel had been so placed), between 5:30 p. m. and 5:50 p. m., when it was “pretty dark,” defendant Fiene, a chauffeur employed by the Milk Producers’ Co-Operative Marketing Company, was driving at a slow speed a large truck, containing milk, west on the north side of Grand Avenue approaching Cicero Avenue. The street was congested with street cars and other vehioles, and many persons were waiting to board the street cars. There was one standing street car facing west near Cicero Avenue and back of it its trailer; then an automobile; then a second street car with its trailer and then Fiene’s truck, which he had stopped for a moment. Still a third street car was approaching from the east. Fiene had been driving close to the north curb of the street so as to allow one of the street cars to pass alongside. This was necessary because of the narrowness of .the space between the curb and the passing car. The traffic started moving again and Fiene moved his truck forward at a slow speed. After he had gone about 10 feet the hub-cap of the right front wheel of his truck, which cap extended over the curb from 2 to 3 inches, struck the east end of one of the I-beams, lying in the parkway, and moved it towards the west about a foot or two. The truck was then about 200. feet east of Cicero Avenue. There were no lights of any kind, indicating the presence of the I-beams and Fiene testified that he did not observe that they were lying near the curb. The deceased, Pennington, with plaintiff’s witness, Montesano, were standing on the I-beam, waiting to board a street car, when the beam was moved by the truck and they were “jarred off” and fell. In the fall Pennington’s left leg was crushed between the beam on which he had been standing and another beam just west of it. Pennington and Montesano and several others had endeavored to board one of the crowded street cars which had been standing west of the truck, but, the doors having been closed as the car moved forward, they stepped back onto the I-beam in the parkway to get out of the way of the truck, intending to board the third street car which was approaching behind the truck. Some of the other persons were standing on I-beams and some in the parkway, and it was a frequent occurrence for intending passengers to board street cars at about the place where the accident happened at times of similar congestions. After the accident Pennington was taken to a hospital, there treated, and on the seventh day his leg was amputated. Shortly thereafter he developed gangrene and septicemia and died as a result of the injuries he had received.
One of the contentions of counsel for Moll is in substance that the judgment should be reversed because plaintiff’s amended declaration, upon which the case was tried, charges that decedent’s injuries and death were caused by the concurrent negligent acts of Moll, in placing the I-beams where they were placed, and of Fiené, the driver of the truck, in hitting one of the beams, and that the verdict and judgment in favor of Fiene and his employer determined that the accident was not due to both negligent acts as alleged. It is argued that, after such verdict and judgment had been rendered at the close of plaintiff’s evidence, it was necessary for plaintiff, in order to proceed against Moll alone, to file an amended declaration charging that decedent’s injuries and death were proximately caused by Moll’s negligent acts alone. The contention and argument amount to the claim that there was a variance between the declaration and the proof. But the record does not disclose that any question of variance was raised at the trial and it is well settled that such a question cannot be raised for the first time in a reviewing court. Libby, McNeill & Libby v. Scherman,
The main contention of counsel for Moll is that the act of Moll, by his servant Droege, in placing the I-beams in the parkway where they were placed, and permitting them to remain there, was not a negligent act, and even if it be so considered, it was not the proximate cause of the injuries and death of Pennington. Under the pleadings and the facts in evidence, we think it was for the jury to say whether said act of Moll’s employees constituted negligence attributable to Moll, and whether it was the proximate cause of Pennington’s injuries and death. In Seith v. Commonwealth Electric Co.,
“The negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury, or if it sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by any new or independent cause. The question is not determined by the existence or non-existence of intervening events, but by their character and the natural connection between the original act or omission and the injurious consequences. To constitute proximate cause the injury must he the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person- guilty of a negligent act or omission might have foreséen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. * * * The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and if so, the connection is not broken.”
Tested by these rules we think that the jury were fully warranted under the facts and circumstances in evidence in finding that the act of Moll’s employee, in placing ope of the I-beams in the parkway so close to the edge of the curb that it might be struck and suddenly moved by the hub of a wheel of a passing truck or automobile, was the proximate cause of Pennington’s injuries and death. Although the beams were placed in the narrow space or parkway between the curb and the sidewalk, said space or parkway constituted a part of the public street (see City of Chicago v. O’Brien,
And, on the question of Pennington’s alleged contributory negligence in standing on the beam instead of in the parkway or on the sidewalk at the particular time, we think that it was for the jury to say, under all the circumstances, whether in so standing he was guilty of contributory negligence, and that their verdict to the effect that he was not so guilty should not be disturbed. The evidence shows that he had attempted unsuccessfully to board one street car and had stepped back with others from the street and was waiting, after the truck had passed, to board another approaching street car.
Another of counsel’s contentions is that, if there was negligence in placing the beams where they were placed and allowing them to remain there, it was the act of Bowley Brothers Company and not Moll. It is argued that the control of the beams was and continued to be in Bowley Brothers. Company because when Moll’s employee arrived at the premises with them the foreman of Bowley Brothers Company told him, in response to his inquiry as to where he should unload them, to put them “any place he wanted to.” We find no merit in the contention or argument. By the terms of his contract with Bowley Brothers Company, Moll was not only to furnish the steel but to “erect” it in the proposed building. Bowley Brothers’ foreman in effect told Moll’s employee to use Ms own judgment as to where he should temporarily place the beams, and we think that his act in placing* them in the parkway should be considered as Moll’s act and not that of Rowley Brothers Company. The foreman gave no directions as to the particular place where they should be unloaded. The ownership of them and the custody and control of them, up to the time of the accident, remained in Moll. The act of the foreman in. signing* the delivery tickets did not relieve Moll from the duty he owed to the public not to place them where they would become an improper and, probably, a dangerous» obstruction.
Counsel further contend that the court erred in admitting in evidence a certain ordinance of the city of Chicago requiring* that “red lanterns shall be displayed and maintained during the whole of every night at each end of every pile of material in any street or alley and at each end of every excavation.” In the second count of plaintiff’s amended declaration Moll was charged with the negligent violation of this ordinance at the time and place in question. Counsel argue that the ordinance was inapplicable to the facts as shown by the evidence because (a) the piles of beams were in the parkway and not in the street and (b) it was not “night,” though pretty dark, when the accident happened, and that the admission of the ordinance in evidence was very, prejudicial to Moll. In our opimon both the contention and the argument are without merit. As previously stated herein the piles of beams were in a portion of a public street. They were in the narrow parkway between the curb and sidewalk. And another division of this Appellate Court has held' that such ordinance is applicable where piles of building material are placed by contractors on the sidewalk of a public street, adjacent to premises where a building is in process of erection. Girdzus v. Van Etten,
During the trial plaintiff, the administratrix of the estate of deceased, and also his widow, was allowed to testify over objection concerning his earnings during his lifetime, and that she and her three children had been supported by him. It is urged that it was error to allow this testimony to be admitted. We do not think so. Brennen v. Chicago & Carterville Coal Co.,
Nor do we think that the court erred in refusing to allow Frank Moll, defendant, to testify generally as a witness in his own behalf. Cahill’s St. ch. 51, ¶ 2; Sullivan v. Corn Products Refining Co.,
Finding no reversible error in the record the judgment appealed from against Frank Moll is affirmed.
Affirmed.
Fitch, J., concurs.
Dissenting Opinion
dissenting: While it was a question of fact for the jury, I cannot agree with the conclusion that plaintiff sustained the burden pf proving the exercise of ordinary care by deceased for his own safety in standing on material that might be moved, if hit by a passing vehicle, and thus incurring a danger as discernible and apparent to him as it must have been to the person charged with negligence in placing it there, without proof that there was not another safe way by which he could as readily have reached the parkway. For aught that appears to the contrary by any competent evidence he could have stood in or walked to a safe place between the ends of the piles of beams. To be sure one witness said “it was necessary to walk upon the iron beams to get out of the way of the truck.” But that was a mere conclusion. The fact could be determined only by whether — conceding his right to be in the street at that point for the purpose of boarding a car — he could have gotten onto the parkway where others were standing and waiting without stepping over and standing on the iron beams.