Consolidated Ice Machine Co. v. Kiefer

Green", P. J. Anton Kiefer, administrator of his deceased son, John Kiefer, brought this suit against appellants to recover damages for the death of his intestate, for the benefit of the next of kin. The negligence alleged as creating the liability, is that the brewing company failed to exercise care in providing supports safe and sufficient to support an iron tank, part of a refrigerator plant, and the ice machine company carelessly and negligently undertook and attempted the erection of the plant and directed deceased, then in its service, to go upon the roof of the engine house of the brewery, when it knew, or by the exercise of ordinary care, and prudence might have known, the supports for said tank were wholly insufficient; and while deceased was upon the roof performing his work as directed, without knowledge of the insufficiency of the supports, the tank, by reason of such insufficiency, fell, taking with it a portion of the roof upon which deceased was then standing, and thereby he was precipitated into the engine house and killed. It appears by the record that the refrigerator plant was being put up by the ice machine company at the instance of its co-defendant, the latter undertaking as its part of the work to fix the location for the tank and to construct a support for it. The support furnished was a truss, composed of timber, and hog chain underneath, the hog chain consisting of two iron rods anchored one in the north and the other in the south wall of the engine room and joined in the center by a swivel. From, this truss cross timbers were run across and rested upon the top of the east wall, and upon this structure the tank, made of iron, was placed. It fell by reason of the support breaking, and carried with it the portion of the roof on which deceased then stood doing some work on the tank, precipitating him to the floor of the engine house and killing him. lie was a laborer, then in the employ of the ice machine company. It was the duty of the ice machine company to use reasonable care to protect its servant, the deceased, from extra hazard, and not direct him to work in a place which it knew, or might by reasonable care and diligence have discovered, to be dangerous. It was the duty of the brewing company in performing that part of the work it had undertaken to do in effecting the common purpose of appellants, the construction of a refrigerator plant, to use reasonable care to furnish a support sufficiently strong to bear the immense weight of the tank when filled. The deceased on his part assumed those risks only, incident to his employment, of which he had express or implied notice. This risk and peril in the performance of the work he had contracted to do, ought not to have been increased by the malfeasance or negligence of those employing him. Wharton on Feg., Sec. 206, 207, 208, 209, notes, and cases cited. The appellants are also to be held liable.for all the consequences which might have been foreseen and expected by them as the result of their acts or omissions. If it is proven the structure erected by the brewing company was being used by its permission, it would be probable the employes of the ice machine company would be obliged to work on or about the tank, and in such employment, if the structure was insufficient and unsafe, it was a consequence to be apprehended that the tank would fall, and carry in its fall and injure those so at work on or aboutit. Weick v. Lander, 75 Ill. 93; Samuelson v. Cleveland Iron Co., 49 Mich. 164; Coughtry v. Globe Woolen Co., 56 N. Y. 124. It is contended, however, on behalf of appellants, that they are absolved from any liability, because the brewing company used the reasonable care required of it by the employment of competent mechanics and use of suitable, sufficient and good material in the construction of said support, and it broke by reason of a hidden defect in the weld in the swivel, which could not have been discovered by careful examination, and also that deceased was warned by the superintendent not to go upon the roof until the water was let out of the tank, but not heeding the warning, went into the place of danger, and by his own negligence caused his death. In support of these theories, at the trial defendants introduced testimony showing the carpenter employed in erecting said support was competent, the lumber used was fit and suitable, and the hog chain was made by a reputable firm whose business it was to make such appliances. John, the carpenter, also testified for them that, in his opinion, the swivel first gave way, and the timbers broke because of that, and because there was more weight put on them than he was told would be; that the tank weighed more than twice as much as he was told it would; and another thing, the swivel was made of bad iron. On their behalf also, Elliot, manufacturer of frogs and trusses, and a machinist, Beckmann, an engineer and machinist in the employ of the brewing company, Gains, practical worker in iron, Wilson, a blacksmith, Licli, a blacksmith, Meyer, a blacksmith, and Manion, a blacksmith, were called as expert witnesses, and gave as their opinion that the hog chain in question would support a weight much greater than that of the tank when filled, if the weld in the swivel had not been defective, and testified the defect was latent, and attribute the breaking of the truss to this defect. Three of these experts testify the'only sure way to discover such defect would be a test by putting a weight or strain on the iron. One of the experts, who testified the swivel, if well made and of good material, would stand a strain of 140,-000 lbs., admitted he testified before the coroner’s jury, the swivel, under same conditions, would stand a strain of thirty tons only. Another, who testified the swivel, if properly made, would stand a strain of 80,000 to 100,000 lbs., testified before the coroner’s jury it would stand a strain of twenty to twenty-five tons. Upon the sécond point the proof, when carefully examined, does not, as we think, establish the fact that deceased was warned of the danger of going upon the roof, or knew, or might have known by seeing the truss as it appeared when finished, that it was unsafe or insufficient. He had been at work for the ice machine.company only about a day and a ha’f, and it does not appear by the evidence he had knowledge or experience enabling him to detect by observation the insecurity of the structure. On behalf of plaintiff, Stith, a laborer in the employ of the ice machine company, and who had worked in a rolling mill for a long time, Toys, a carpenter, who had built trusses for the support of heavy burdens, Ellis, the blacksmith who made the swivel, Dennety, superintending 'the work on behalf of the ice machine company, all testified the truss as constructed, if without defect in material used, was insufficient and not strong enough to support the weight of the tank when filled. The last named witness, who had eight years experience in the construction of refrigerator plants, testified also, that when this support was completed, and before the accident, he called the attention of Heims (who was there acting for the brewing company) to the structure, told him it was not strong enough and would not sustain the tank, and he ought to support it with two additional cross beams and an additional hog chain. It also appears in evidence that Heims, when he gave the order for the hog chain which was used, to the firm who furnished it, did not disclose the use or purpose for which it was to be employed. Bevelot, a witness for plaintiff, testified also that Dennety directed deceased, himself and another employe to go upon the roof to fit up a heater on top of the tank and do some other work there; that such direction was obeyed, and while on the roof the tank fell, and with it the roof and those on it, including Kiefer. Dennety denied giving such direction. It thus appears that Heims was guilty of negligence in not informing the firm which furnished the liog chain of the use for which it was intended, so that care in making it and testing its strength might be insured, and defects in it, if any, thus be detected. This, with all the other evidence in the case, justified the jury in finding appellants guilty of the negligence charged. True, the evidence was conflicting in regard to material matters, but it was the duty and province of the jury to determine the weight and credit to be given the testimony of the several witnesses; these witnesses were before the jury; their manner while testifying, their apparent intelligence,'the means of knowledge disclosed, the discrepancies in their testimony, the probability or improbability of the statements made by them, were means whereby the jury were better enabled to reach a correct finding than we could, and we decline to abrogate the rule adhered to by our Supreme Court in like cases and invade this province of the jury. Shevelier v. Sacger, 121 Ill. 568. It is further insisted, however, that the defendants can not he held jointly liable, because, as counsel say, “ plaintiff is suing his own master for a breach of duty, and has joined with him another party, who was not sustaining that relation to him, for the breach of another duty, and these breaches are charged as separate acts of negligence.” We do not so understand the averments or the proof. The appellants were acting in concert, co-operating in the erection of the plant; the brewing company was negligent in providing a structure which was unsafe and insufficient whereby deceased incurred an extra peril when at his work, not incident to his employment; the ice machine company was negligent in directing deceased to work in this place of danger, it having knowledge, and he being without notice or knowledge of such danger, and the successive concurrent negligence of appellants thus united in causing the death of Kiefer. Persons who co-operate in an act directly causing an injury are jointly liable for its consequences. If they act in concert or if they unite in causing a single injury, although acting independently of each other, they are jointly liable. Shear-man & lledf. on Negligence, Sec. 58; Wharton on Neg., Sec. 788, and notes. Error is also assigned for the refusal of the court to permit Heims to testify; but it appeared he was a stockholder in the brewing company, a private corporation, and for that reason was an incompetent witness. Thresher v. Pike Co. R. R., 25 Ill. 393. By the statute he was competent as to any conversation or admission by him, testified to by any witness for plaintiff, and occurring before the death of Kiefer, but the offer by the appellants was a general one to prove by this witness facts, material to the defense, prior to the death of Kiefer, not confining his testimony to any conversation or admission of his prior to such death, testified to by a witness for plaintiff, and the ruling of the trial court was right. It is also claimed as a sufficient cause for reversal, that the amount of $2,500 awarded as damages, for which sum judgment was rendered, is excessive. It is the peculiar province of the jury in this class of cases to estimate and award, under the evidence introduced, the amount of damages plaintiff pught to recover, and upon an examination of the evidence in this case we are unable to discover that the jury acted improvidently or awarded excessive damages. City of Chicago v. Major, 18 Ill. 349; C. & A. R. R. Co. v. Shannon, 43 Ill. 346; City of Chicago v. Scholten, 75 Ill. 468. We are satisfied upon a careful inspection of the record there is no substantial error in the ruling of the court below, or in the rendition of the judgment appealed from, requiring its revei sal. The judgment is affirmed. Judgment affirmed.