240 Ill. 231 | Ill. | 1909
delivered the opinion of the court:
There is evidence in this record which tends to prove (1) that it was dangerous for appellee to work at the saw in question during the time he operated it, on account of it throwing slivers and splinters of wood in his face; (2) that the ordinary hood or cover over the saw would have obviated the danger; (3) that two or three days before the injury he complained to Joseph Havorka about the saw throwing slivers and splinters and asked him to put something over the saw and that Havorka promised to “fix it that nothing being done, appellee, during the forenoon of the day of the accident, again complained to Havorka and Havorka again promised to supply the necessary cover; that thereafter, and during the same forenoon, appellee sustained the injury of which complaint is made, by receiving a blow in the eye from a splinter or sliver or other piece of wood thrown by the saw; (4) that appellee was by the promise of Havorka, made on the day of the accident, induced to continue at work at the saw; and (5) that Havorka was appellee’s foreman.
It is urged that this proof was not sufficient to warrant a verdict because the saw was a common and simple implement with which the appellee was entirely familiar, as was held by this court in Webster Manf. Co. v. Nisbett, 205 Ill. 273, in reference to a backing hammer, which was defective by reason of the fact that the face had become somewhat chipped. We are of opinion that a rotary rip-saw, operated by steam at a speed sufficient to rip maple boards, cannot be regarded as within the rule announced in the case just cited.
It is then urged that the proof is insufficient because it does not appear that the saw itself was defective or out of repair, while it is shown that the alleged difficulty was the result of the lack of an additional appliance, namely, a hood for the saw; that it is not shown that this particular saw ever had a hood, and that where the machine remains as originally constructed and is not of itself defective, and the injury results from the lack of some additional thing that never had been supplied and not from the fact that the machine itself was defective or had been suffered to become and remain out of repair, the plaintiff cannot recover following a failure to comply with a promise to supply the missing thing, as he could do in the event of sustaining an injury consequent upon a failure to comply with a promise to repair a machine that was out of order. It is. immaterial whether the dangerous condition was occasioned by the way the machine was constructed and equipped or resulted from wear, breakage or other like cause. Swift & Co. v. O’Neill, 187 Ill. 337.
It is also urged that there was no evidence that the missile which inflicted the injury was thrown by the saw, and further that the statement of appellee that a piece of wood flew up and hit him in the eye should have been stricken out. Appellee, on direct examination, made the statement just referred to. Upon cross-examination he stated that he did not see what hit him, whereupon a motion was made by appellants to strike all his testimony in reference to the piece of wood flying up and hitting him, and this motion was denied. Other testimony of the appellee affords circumstantial proof that the thing which hit him was a piece of wood thrown by the saw. While his statement of his conclusion that it was a piece of wood that hit him might properly have been stricken out, the court’s refusal to sustain the motion to strike did not prejudice appellants, in the absence of any evidence tending to show that the injury was inflicted in any manner other than that shown by the circumstantial evidence to which we have alluded.
The court did not err in refusing to direct the jury to find a verdict for the appellants.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
