Ashley Wire Co. v. Mercier

Mr. Justice Carter delivered the opinion of the court: Plaintiff in error contends that the trial court erred in refusing its motion to instruct the jury that the evidence was not sufficient to support a verdict for the plaintiff, and to find their verdict for the defendant. It is clear, from the evidence, that such an instruction would have been erroneous. The record contains sufficient evidence tending to prove the negligence of plaintiff in error, the Ashley Wire Company, as alleged in the declaration, to support the verdict. It is unnecessary to repeat the rule on that question here. Reference may be had, among others, to the following cases: Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340; Chicago and Alton Railroad Co. v. Heinrich, 157 id. 388; New York, Chicago and St. Louis Railroad Co. v. Luebeck, id. 595; West Chicago Street Railway Co. v. Lyons, id. 593; Pullman Palace Car Co. v. Laack, 143 id. 242. It is assigned for error that the trial court permitted the witness Hilley to testify to two conversations between him and the superintendent of the company, had shortly before the accident. The superintendent had requested Hilley, then an employee, to take the place, under the crane or derrick, of a workman who was absent on account of sickness. Hilley demurred, saying he was afraid to work under that crane. The superintendent then said, “Try and draw them (the pots) to-day,” and witness replied, “All right,” and that he would do so. On the second occasion, which was only an hour or two before the accident occurred, witness and the superintendent were standing under the crane or derrick when the superintendent again requested him to go to work drawing the pots under the crane, and witness replied to the request that he was afraid of the derrick. The superintendent then told him to take his coat and go home—that he had no more use for him, witness. It is claimed by plaintiff in error that this testimony was erroneous and prejudicial to the defendant below, and principally for the reason that the witness did not, in this conversation, specify or point out to the superintendent any special defect in the crane or derrick which rendered it unsafe to those working under it, and that the mere fears of Hilley were wholly immaterial, but were injurious to the defense. It is very true that the mere fact that the witness was afraid to work under the crane would be improper as evidence to the jury; but that was only a part of the conversation with the superintendent, which, taken all together, under the circumstances tended, we think, to show, to some extent, that the attention of the company was called to the fact that this part of the machinery was not in a safe condition, and as well said by the Appellate Court, it was “such as would cause a prudent man to inspect it, or to make some inquiry of the employee for the cause of the danger.” The duty of those using machinery dangerous to human life to observe at all times due care and caution to see that it is in a reasonably safe condition, ought to be strictly enforced by the courts. It is not an unreasonable inference to be drawn from the testimony, that if the superintendent had made further inquiry and an examination of the derrick and its fastenings the serious accident which followed might have been averted. We are disposed to hold that no error was committed in the admission of this testimony. It is also insisted that the trial court erred in refusing to permit the witness Bates to answer certain questions as an expert mechanic; but we think the testimony called for, so far as it was proper at all, was embraced in other testimony given by him, and that plaintiff in error was not injured by the ruling of the trial court. It is not contended by counsel that the jury were improperly instructed at the request of plaintiff bélow, but it is insisted that error was committed in refusing certain instructions offered by the defendant. In the first place, it is claimed that there was error in refusing two certain instructions offered by defendant below, which instructions, after stating the rule applicable to fellow-servants, would have told the jury, in substance, that if they believed, from the evidence, that the accident was caused by the negligence of the fellow-servant of plaintiff he could not recover. It is a sufficient answer to say that the court formulated and gave to the jury an instruction in lieu of those asked by the defendant, covering the rule invoked, and "which, in some respects, was more favorable to the defendant than those asked by it. Counsel say that this instruction of the court “omitted entirely the element held in all the authorities to be essentially necessary, namely, that the plaintiff must have been so associated with Murphy and Maloney as to exercise constant care and caution in the performance of their respective duties,” and we are referred to the language used by this court in Chicago and Northwestern Railroad Co. v. Moranda, 93 Ill. 302, where it was said (p. 316): “Where servants of the same master are "* * * by their usual duties brought into habitual consociation, it may well be supposed that they have the power of influencing each other to the exercise of constant caution in the master’s work, by their example, advice and encouragement and by reporting delinquencies to the master, in as great, and in most cases in a greater, degree than the master.” Whether the instruction was erroneous in the respect mentioned or not it is wholly unnecessary to consider, for the reason that the error, if any, was favorable to defendant below rather than to the plaintiff. The instruction as given, based upon the evidence, practically told the jury that the workmen engaged in the work at the crane were fellow-servants of Mercier, and that if the injury occurred because of the negligence of any of them, Mercier could not recover. Plaintiff in error cannot complain of an error beneficial rather than injurious to it. In refusing other instructions asked we find no substantial error. Some were embraced in others given and others were defective, and it is sufficient here to say that the jury were instructed as favorably for the defendant below as the law warranted. Finding no substantial error in the proceedings in the courts below the judgment of the Appellate Court must be affirmed. Judgment affirmed.