Deering v. Barzak

Mr. Justice Vickers delivered the opinion of the court: First—It is contended by appellants that the court below erred in sustaining the demurrer to the plea of the Statute of Limitations. This contention is based upon the assumption that the amended count stated a new and different cause of action from that stated in the original declaration. This contention cannot be sustained. The gist of the cause of action in the original declaration, and also in the amended second count, is, that appellants negligently failed to use reasonable care to furnish appellee a reasonably safe place to do the work required of him by the order of appellants’ foreman. The averpient in the original second count, that the gangway was obstructed by order of appellants’ foreman, did not state any different cause of action from that stated in the first original and second amended counts, which aver that the gangway had’been obstructed with the knowledge of appellants’ foreman. The cause of action, as stated in both instances, is the same, and each count grows out of the alleged failure of appellants to furnish the appellee a reasonably safe place in which to work. While evidence that appellants’ foreman had ordered the obstructions thrown into the gangway might be receivable as bearing upon his knowledge that such obstructions were there, it would not constitute a different cause of action from that stated in the amended second count. The cause of action in all the counts is the alleged breach of appellants’ duty to furnish appellee a reasonably safe place to work, and the injury of appellee in consequence thereof. Swift & Co. v. Madden, 165 Ill. 41; Town of Cicero v. Bartelme, 212 id. 256. Second—It is insisted the court erred in permitting the appellee to prove on the trial that he was injured in his sexual organs, and that since the injury he had been unable to have sexual intercourse with his wife and that before the injury he had begotten children. This question is settled adversely to the contention of appellants in Postal Telegraph Co. v. Likes, 225 Ill. 249, where it was held that virility before the injury might be shown by the fact that the injured party had been the father of a child, and that a total or partial loss of masculine vigor was a proper element of damages, which was recoverable, under proper averments, when it resulted from a personal injury wrongfully inflicted by another. The authority of the Likes case on this point is not impaired by the dissent, which was on other points not involved in this cáse. Third—Appellants ask that the judgment be reversed because it is said the obstructions, if any were in the gangway, were placed there by- fellow-servants of the appellee. The evidence tends to show that after appellee passed out of room 4 in carrying out the order to go to furnace No. 5 and secure the iron, other employees of appellants deposited the obstructions in the gangway, over which the appellee stumbled and fell. It is also shown that appellants’ foreman had notice that obstructions had been placed in the gangway. The duty of the master to use reasonable diligence to furnish the servant with a reasonably safe place in which to work is one of those primary and continuing obligations cast upon the master by the law which cannot be delegated to another. If the gangway through which appellee would have to pass on his return was obstructed and unsafe, which was known or by the exercise of reasonable diligence would have been known to the foreman in time to have removed the obstruction before the accident, and appellee was ignorant of the unsafe condition and free from the imputation of contributory negligence, appellants are not absolved from their duty to use reasonable diligence to restore the gangway to a reasonably safe condition because it had become unsafe through the agency of a fellow-servant of appellee. Labat on Master and Servant, sec. 129; Chicago and Iowa Railroad Co. v. Russell, 91 Ill. 298; Missouri Malleable Iron Co. v. Dillon, 206 id. 145; Illinois Terminal Railroad Co. v. Thompson, 210 id. 226; Rogers v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. 211 id. 126; South Side Elevated Railroad Co. v. Nesvig, 214 id. 463; Illinois Steel Co. v. Ziemkowski, 220 id. 324. Fourth—It is contended by the appellants that the court erred in giving instructions numbered 3, 4, 6, 10 and 13. Instruction No. 3 is as follows: “It was the duty of the defendants in this case to have used ordinary care and prudence in furnishing the plaintiff with a reasonably safe passageway, at the time of the accident, along which to carry molten metal, and to have used all reasonable precautions to maintain and keep such passageway in a reasonably safe condition.” The objection to this instruction is, that it uses the language “all reasonable precautions” in the last clause and “ordinary care and prudence” in the first. It is said that the jury were liable to understand from this instruction that the law required something more of appellants than ordinary care to furnish appellee a safe place to work and to keep the same reasonably safe. We do not see that the instruction could reasonably be construed as meaning anything more than it would mean if the words “prudence” and “all” were stricken out. An instruction in substance the same as this one, and containing the words “prudence” and “all,” used in the same sense as they are employed in this instruction, was approved in Libby, McNeill & Libby v. Scherman, 146 Ill. 540. Instruction No. 4 is as follows: “The jury are instructed that plaintiff must establish his case by a preponderance of the evidence. This preponderance, however, is not alone necessarily determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of the evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify; their conduct' and demeanor while testifying; their interest or lack of interest, if any, in the result of the case; the relation or connection, if any, between the witnesses and the parties; the apparent consistency, fairness and congruity of the evidence; the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved on the trial; and from all these facts determine upon "which side is the weight or preponderance of the evidence.” The objection made to this instruction is, that it invades the province of the jury, in that it directs the jury how to determine where the preponderance lies, and does not allow the jury, in their own way and manner, to determine upon which side the evidence preponderates. In support of appellants’ objection to this instruction appellants cite Frizell v. Cole, 42 Ill. 362, and Nieman v. Schnitker, 181 id. 400. Neither of these cases seems to have any application to the point involved in this instruction. We do not regard the instruction as an invasion of the province of the jury. The instruction very properly directs the attention of the jury to a number of elements that should be taken into consideration in determining where the preponderance of the evidence is. This court has often approved instructions of this character. Meyer v. Mead, 83 Ill. 19; West Chicago Street Railroad Co. v. Lieserowitz, 197 id. 607; Miller v. John, 208 id. 173; Chicago City Railway Co. v. Bundy, 210 id. 39; Chicago Union Traction Co. v. Yarus, 221 id. 641. The objections made to instructions 6, 10 and 13 have been considered and the authorities upon which appellants rely examined, and we have reached the conclusion that there is no reversible error contained in any of them. None of the objections made are of such a serious character as to warrant us in reversing the judgment. The appellants also complain that the court improperly modified one instruction offered on behalf of appellants and also improperly refused certain other instructions offered by appellants. As to the modification of instruction 31, it was a mere verbal change, which did not affect the general sense of the instruction. The court gave thirty-one instructions covering every question that was submitted to the jury and refused four offered by appellants. The law of the case was fully given to the jury in the instructions given at the instance of appellants. Two of the refused instructions, namely, 33 and 34, were mere formal requests for the court to direct a verdict on the first and second counts, respectively, of the declaration, and there being evidence fairly tending to establish plaintiff’s case these two instructions were properly refused. Nos. 35 and 36 were properly refused, for the reason that, in so far as they stated correct principles of law applicable to the case, the points are sufficiently covered by other instructions. ■ Finding no reversible error in the case the judgment is affix med. Judgment affirmed.