| Ill. App. Ct. | Apr 4, 1889
Appellee brought suit against appellant to recover for personal injuries received on the 8th day of December, 1886. The declaration contains four counts. The first count alleges that plaintiff was working as a laborer in defendant’s mill; that a certain coupling in the mill was so negligently repaired that it was left in an unsafe and dangerous condition; • that plaintiff not knowing that fact, being ordered by the foreman, who gave no warning of danger, to oil certain journals, and whilst doing so was caught by the bolts of the coupling and injured.
The other three counts are similar, and aver plaintiff was employed to do yard work or as laborer, and being inexperienced in oiling machinery, was not aware of the danger, and the foreman knowing the danger did not warn him and he was injured.
A trial was had in the Circuit Court of St. Clair County, and a verdict was rendered for $2,000. A motion for new trial entered.by appellant was overruled, and the -appellant prosecutes an appeal to this court. Appellant assigns as error and in argument relies on:
1. The court refused to permit appellant to give proper testimony to the jury in cross-examination of appellee.
2. The court admitted improper testimony for appellee. .
3. The jury were improperly instructed.
4. The verdict was contrary to the evidence.
5. The court erred in overruling motion for new trial.
The assignments of error will be considered in the order named.
First, under the second, third and fourth counts, the allegations are that appellee was a laborer employed to do yard work, and was inexperienced in oiling the journals of the shafting, and was ordered to oil a journal near a coupling which was dangerous, and the foreman who so directed him to work, knowing the danger, did not warn him. On the cross-examination the appellee was asked as to his former employment by this company, and the character of work done, and whether he had not formerly had experience as an oiler ■of this kind of machinery for this defendant. These questions of appellant were objected to and the objection sustained by the court.
The evidence was pertinentand material, and we see no reason why the answer should not have gone to the jury. But .this fact was clearly and positively shown by appellant’s witnesses, and was not sought to be controverted by appellee. The refusal to allow the questions on this point to be answered by appellee, could not injure appellant, and was not such errólas would reverse this judgment.
Second. The appellant objected to the clothing of appellee, worn at the time of the injury, being exhibited to the jury on the person of appellee. The clothing, being put on by appellee for the purpose of explaining the manner he was caught, would better enable the jury to understand and determine that fact than any description of the c'othing could do. It was not an experiment before the jury; it was the explanation and submission of facts to them. In this there was no error.
Third. The appellant assigns as error the giving of appellee’s instructions, viz.:
1. The court instructs the jury that if, under the evidence and the instructions of the court they find the defendant guilty, then, in estimating the plaintiff’s damages, if any are proved, they have a right to take into consideration not only the loss, expenses and immediate damage arising from the injuries received at the time of the accident, but also the permanent loss and damage, if any is proved, arising from any disability resulting to the plaintiff from the injury in question, which renders him less capable of attending to his business, than he would have been if the injury had not been received; provided they do not estimate said damages at a sum greater than fifteen thousand dollars.
2. The court instructs the jury, that if you find the issues in this ease for the plaintiff, the form of your verdict may be: “ We, the jury, find the defendant guilty as charged, and assessed the plaintiff’s damages at-”.
3. The court instructs the jury, that if they find from the evidence that the plaintiff was himself guilty of some negligence, but that the defendant was guilty of gross negligence contributing to such injury, and that the plaintiff’s negligence was slight as compared with the negligence of the defendant, still he may be entitled to recover.
The objection, as insisted, is that tlie-e instructions do not require the evidence to show the guilt as alleged in the declaration or some count thereof; but, if guilty of any neglect, even though not as alleged, the plaintiff would be entitled to recover. We hold these instructions are not obnoxious to the objection interposed. By the first instruction, if the jury find the defendant guilty, that they will find him guilty as charged in the declaration or some count thereof is the necessary inference, and could not be misunderstood by the jury. That part of the instruction which states what may be taken into consideration in assessing the damage, was proper. The second was not misleading and to give it was not error. Village of Sheridan v. Hibbard, 119 Ill. 310; Gizler v. Witzel, 82 Ill. 323; Miller v. Balthasser, 78 Ill. 302" date_filed="1875-09-15" court="Ill." case_name="Miller v. Balthasser">78 Ill. 302.
By the third instruction the rule as to comparative negligence was substantially stated, and it was not error to give the same.
Fourth. ' The controversy on this point must be determined from the preponderance of the evidence, taking into consideration the fact of the finding by the jury. It is the duty of the master to provide suitable and safe machinery, reasonably adapted to perform the work about which the servant is employed who operates it. The master is bound to use proper care and skill in providing and keeping in repair such machinery or appliances. For negligence in the performance of this duty he is liable to a servant injured by such neglect. C., B. & Q. R. R. Co. v. Gregory, 58 Ill. 272" date_filed="1871-01-15" court="Ill." case_name="Chicago, Burlington & Quincy Railroad v. Gregory">58 Ill. 272; T. W. & W. Ry. Co. v. Fredericks, 71 Ill. 294" date_filed="1874-01-15" court="Ill." case_name="Toledo, Wabash & Western Railway Co. v. Fredericks">71 Ill. 294; C., B. & Q. R. R. Co. v. Avery, 109 Ill. 314" date_filed="1884-03-26" court="Ill." case_name="Chicago, Burlington & Quincy Railroad v. Avery">109 Ill. 314; C. & A. R. R. Co. V. Shannon, 43 Ill. 338" date_filed="1867-01-15" court="Ill." case_name="Chicago & Alton Railroad v. Shannon">43 Ill. 338.
While the negligence of a fellow servant is one of the ordinary risks undertaken by an employe, yet the duty of the master to keep the machinery and appliances in a suitable and safe condition is a duty from the master to the servant who uses the machinery, and one servant intrusted by the master to beep or put the machinery in proper condition is not the fellow servant of one who is employed to use the machinery when in operation. C. & N. W. Ry. Co. v. Swett, Adm’r, 45 Ill. 197" date_filed="1867-09-15" court="Ill." case_name="Chicago & North Western Railroad v. Swett">45 Ill. 197; Indpls. R. R. Co. v. Flannigan, 77 Ill. 365" date_filed="1875-01-15" court="Ill." case_name="Indianapolis Bloomington & Western R. R. v. Flanigan">77 Ill. 365; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492" date_filed="1870-09-15" court="Ill." case_name="Chicago & Northwestern Railway Co. v. Jackson">55 Ill. 492.
In this case the evidence shows the coupling was out of repair; a bolt lost; A servant, sent to repair that coupling, not having a suitable bolt, one that fitted, used an old bolt not made for the purpose—one that was too long. That was the act of the master in so making the repair. .The appellee, who was called upon to oil the journal near that coupling, was not' a fellow servant of the. one who repaired the coupling. He had a right to assume it was in a proper condition. H. S. Rolling Stock Co. v. Wilder, 116 Ill. 100" date_filed="1886-01-25" court="Ill." case_name="United States Rolling Stock Co. v. Wilder">116 Ill. 100; Ill.,Cent. Ry. Co. v. Welch, 52 Ill. 183" date_filed="1869-09-15" court="Ill." case_name="Illinois Central Railroad v. Welch">52 Ill. 183; Perry v. Ricketts, 55 Ill. 234" date_filed="1870-09-15" court="Ill." case_name="Perry v. Ricketts">55 Ill. 234.
While the evidence as to whether it was a properly made or repaired coupling was one of fact for the jury, we hold there was sufficient evidence to authorize the jury to find' that the injury to appellee resulted from being caught in his clothing by the bolt of the coupling, which projected so as to render it dangerous. They so finding, we do not feel authorized to disturb the verdict. On the contrary, the evidence authorized the verdict.
While it is insisted the appellee was guilty of negligence in oiling the journal—the claim being made, from the manner he was drawn down, that he must have been leaning over the shaft when caught,, and therefore negligent on his part—we do not deem it necessary to discuss, as there is no evidence on which to base this claim. The evidence shows the contrary:
■ Fifth. We find no error in the record that would authorize the court to disturb the verdict and grant a new trial, and there was no error in overruling the motion for a new trial. The judgment is affirmed.
.. Judgment affirmed.