John Morris Co. v. Burgess

Mokan, J. This action Avas brought by appellee, who is the widoAV and administratrix of George W. Burgess deceased, to recover damages for his death, Avhich was occasioned by the explosion of a steam boiler or boilers owned and operated by the appellant company. The boilers Avhich exploded Avere situated at the rear of the building fronting on Monroe street, known as 118 and 120 East Monroe street, Chicago. At the time of the explosion, deceased was working as a teamster, and was upon his wagon waiting for a load (from a business house which he was serving) in the public alley south of and adjoining the building in which the boiler or boilers which exploded were located. The effect of the explosion was to throw deceased from his wagon across the alley, and to inflict injuries upon him which resulted within a few days in his death. Upon the trial of the case defendant introduced evidence tending to show that the boilers were in good condition and repair and under the management of a competent engineer. Plaintiff introduced evidence tending to show that the boilers and appliances connected therewith were not in good order and repair, and evidence tending to show that the engineer in charge thereof, was in the habit of getting intoxicated, and was negligent, unskillful and incompetent. The jury, under instructions from the court, returned a verdict against the appellant for the amount of $5,000, and the record is brought here and various errors assigned relating to the admission of improper evidence and the exclusion of proper evidence and to the instructions given and refused by the court. As to the admission of improper evidence, the court permitted the following question to be asked and answered by the administratrix when she was upon the stand, over the objection and exception of the appellant: “ Q. What were the sources of your support and your children at the time of this explosion?” “A. Hone, except my husband.” This evidence was of the same kind and had the same tendency as that held inadmissible in C. & N. W. R. R. Co. v. Moranda, 93 Ill. 302. There the widow of the deceased was permitted to prove that at the time of the death of the husband, Moranda, she and her children had no other means of support save that arising from his daily earnings. The court said: “ It was entirely proper to show the amount of bis usual earnings, and that plaintiff was his wife in life, ancl that they had minor children, whom he was bound by law to support and who usually shared his income, but it was wholly immaterial whether such next of kin had or had not other pecuniary resources after his death,” and for the error in admitting that evidence the case was reversed and remanded for a new trial. There is nothing in the circumstances or in the manner of asking or answering the question objected to in this case, which takes it out of the rule thus established by the Supreme Court. As to the point of the exclusion of competent evidence offered by the defendant, a witness named Stevens, gave testimony which was material and important and in its tendency damaging to the defendant. It was proved on cross-examination that he was discharged by the defendant company from its employ prior to the happening of the accident. Further to show his feeling of hostility to appellant he was asked if he did not, after the explosion, visit several persons who were named, all of whom were employes of the John Morris Company, and some of whom were injured by the explosion, and advised those persons to quit the employment of the company and to sue it for injuries received on the occasion of the accident, and promise them assistance in the way of procuring a lawyer, and the witness denied so doing. One of the parties whom it was contended he had thus approached was put on the stand and he was asked whether Stevens visited him, and asked to state to the jury what he, Stevens, said to him. This was objected to, and the court ruled that it was immaterial. Counsel for appellant then offered to prove by the witness on the stand and by several other witnesses, naming them, that they were all visited by Stevens and urged to leave the employment of the John Morris Company and bring suit against it for damages; and the court excluded the evidence on the ground that it was immaterial.' The hostility of a witness to the party against whom he is called Is always pertinent upon the question of the decree of credibility that is to be extended to him by the jury. Where the witness, on cross-examination, denies the doing of acts or the speaking of words that tend to indicate his hostility, it is competent to contradict him by witnesses. It is always competent to show that a witness is hostile to the party against whom he is called. We think the proof offered would tend to show unfriendly feelings on the part of the witness toward the company, and it therefore was competent and should have been admitted. Atwood v. Welton, 7 Conn. 71; Commonwealth v. Bryan, 14 Gray, 31; Hutchinson v. Wheeler, 35 Ver. 330; Moline Wagon Co. v. Preston & Co., 35 Ill. App. 358. The appellant contends that besides these errors the court erred in refusing to give, at the request of appellant, the following instruction: “ The mere fact that the boiler in question exploded, causing injury to the plaintiff, is not in this case and under the relations existing at that time between plaintiff and defendant, as set forth in the declaration, evenprima facie evidence of negligence or want of due and proper care on the part of the defendant, either, in respect to the condition or management of said boiler; and the jury are not authorized to find the existence of such negligence or want of due and proper care from the mere fact of such explosion and injury.” Appellant says that the rule announced in Illinois Central R. R. Co. v. Phillips, 49 Ill. 234, that the explosion of a steam engine is prima facie evidence of negligence, is to be confined to cases of explosions of engines operated by common carriers, such as railroads, steamboats, etc., and that it does not apply to those who operate stationary engines for the purpose of furnishing power in the transaction of ordinary private business. The Phillips case was twice before the Supreme Court and is reported first in 49 Ill. 234, and on second appeal in the 55th Ill., at page 194. It does not appear that the person injured by the explosion of the boiler of the railway engine in that case was a passen, ger. True, he was at the depot of the company, and probably on lawful business, but the inquiry and discussion in the Supreme Court related to the extent of care due from the company to members of the community not under its care as passengers. The rule laid down by the Supreme Court when the case was before the court first—that it would be improper to say to the jury that the mere fact that the boiler of the engine in question exploded, causing injury to the plaintiff, was not prima facie evidence of negligence or want of due and proper care on the part of the defendant— was challenged in argument and again considered by the Supreme Court on this last appeal. It was then assumed that the court had in a former opinion held that the mere fact that the boilers exploded was prima facie evidence of negligence. “ There is no great hardship imposed on appellant in presuming negligence upon proof of the explosion. It may be easily rebutted if untrue. Such a presumption, however, is prompted by motives of public policy and is necessary for the promotion of the public safety. We know explosions happen; that they are the exception, not the rule. We know that boilers manufactured of good material and carefully managed by skillful and prudent men, carefully tested, thoroughly repaired when defective and closely observed to discover indications of weakness, rarely explode. There are mysterious explosions assignable to no known cause. This is only the conclusion of what is comprehended in the general rule, and should not forbid inferences deducible therefrom. Ho sane man can doubt that explosions generally result from defective iron, corrosion or deterioration of the boiler, or its mismanagement. Such facts proved would constitute negligence. Common observation and the natural operation of the mind force the conclusion that this fearful rending of a boiler into a hundred pieces is generally caused by the omission of some duty.” The court go on at considerable length to justify and sustain the conclusion that proof of the explosion is prima facie evidence of negligence, and that the burden is upon the owners or operators of the boiler to prove that it was in good condition and managed and operated with care. The question really before the court on each appeal was whether it was proper to instruct the jury that the mere explosion was not prima facie evidence. In the T., W. & W. Railway Co. v. Moore, administratrix, 77 Ill. 217, the question of whether the bursting of a boiler would bo, prwna facie evidence of negligence on the part of the company, was again presented to the Supreme Court, and it was held there that the doctrine did not apply where the action was brought to recover for an injury received by the engine driver himself, for the reason that he managed and operated the boiler, and if it was defective or improperly managed, it must have resulted from his lack of ordinary care or of ordinary skill; hence the explosion would not make out a prima facie case against the company. And in distinguishing the Phillips case, the court said: “ It will be observed that in the Phillips case, the person injured was a bystander who was not in the employ of the company and in no manner connected with it. Under such circumstances it was very proper to hold that the explosion made out aprima facie case of negligence, for the reason that the company would be liable if the explosion occurred on account of defects of the engine or through the negligence of the engine driver.” And the case was reversed for giving, at the request of the plaintiff, an instruction that the bursting of the boiler -was, prima facie evidence of negligence. It must, we think, be concluded from these cases that the doctrine that the explosion made out a prima fa,cie case of negligence is not to be confined to cases of explosions by common carriers or to injuries to persons to whom they owed particular or special care; but that where a bystander, lawfully present on Ms own business, was injured by the explosion of a boiler, such explosion made out a primo, facie case of negligence, and imposed upon the owner or operator of the boiler the duty of discharging himself from the consequences of the explosion by proving that he had exercised ordinary care in the selection, repair, management and operation of the boiler. Counsel for appellant has called our attention to the fact that in other States a distinction is drawn between explosions of boilers operated by common carriers and stationary boilers and engines operated in private business. This distinction is made in ¡New York and in Ohio. Losee v. Buchanan, 51 N. Y. 476; Dobbins v. Brown, 23 N. E. Rep. 537; Reiss et al. v. The N. Y. Steam Co., 28 N. E. Rep. 24; Iron R. R. Co. v. Plowery, 36 Ohio St. 418; Huff v. Austin, 21 N. E. Rep. 864. In view of the expressions of our Supreme Court we do not feel authorized to adopt the distinction taken by the Eew York and the Ohio cases. We see no good reason for doing so. We believe that the public safety will be better secured by adhering to the rule which we understand to be established in tins State, that the explosion of a steam boiler, causing injury to a person lawfully present who sustains no relation of employment or duty to the company or individual operating and controlling the boiler, is prima faoie evidence of negligence in those having the management of it, and casts upon them the burden of showing that there was no lack of care and diligence on their part. It was therefore no error to refuse the - instruction asked. The presumption of negligence arising from the bursting of the boiler may be rebutted by its being shown that those responsible for its management used proper diligence in furnishing and maintaining in repair suitable machinery, and employed servants who had ordinary fitness and competency for the performance of their duties. The owner of a steam boiler operating it for purposes of private business is not to be put in the same category as one who maintains a private nuisance, as the keeper of gunpowder or other violent explosive. The keeper of a powder magazine may be liable for the consequences of an explosion whether the same was carefully kept and managed or not. The question of care or want of care is not involved in an action for injuries resulting from a private nuisance. Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322. The owner and operator of a steam boiler is not an insurer of the absolute safety of tire boiler nor a "warrantor of the absolute competency of his employes. The law devolves upon him the duty of exercising ordinary care and diligence to furnish suitable instrumentalities and appliances and to keep the plant free from defects which are dangerous and to select for its operation and management skillful and prudent servants. This is the extent of the burden upon him. At the request of the-plaintiff the court gave to the jury the following instruction: “ The jury are instructed by the court that it was not only the legal duty of the defendant to secure and obtain for its manufacturing business reasonably good and safe machinery, and to obtain and secure a reasonably competent and skillful engineer to control, manage and operate such machinery in the first instance, but it was also the legal duty of the defendant and its engineer intrusted with the control, operation and management of such machinery, to give all reasonable care and attention to maintain such machinery in reasonable repair and condition; and if you believe from the evidence that the deceased came to his death by reason of a failure on the part of the engineer of the defendant to keep the machinery in question in reasonable repair and condition, as charged in the declaration, and that the deceased at the time of the explosion was without negligence, then the plaintiff is entitled to recover,” etc. This instruction placed a heavier burden upon the defendant than the law imposes upon it. If it exercised all reasonable care and attention to keep the machinery in repair and condition, it discharged its whole duty, and in such case if the explosion occurred, the defendant, having exercised such reasonable care and diligence, would have been without liability. The instruction makes the defendant liable at all events if the engineer, in fact, fails to keep the machinery in question in reasonable repair and condition. Between actually keeping it in such condition and exercising ordinary and reasonable care to keep it in such condition there is a manifest and wide difference. The one proposition excuses the owner from liability where he has exercised all reasonable care and diligence'in and about the selection, maintenance and repair of the plant and the employment of skillful servants in the operation of the boiler, and such is the law; while the other would make him liable for the consequence of an explosion though in view of the evidence he has not been guilty of negligence, which, as we have seen, is not the law. There was in this case on the question of the care and diligence of the defendant a conflict in the evidence. It was the very crucial point in the case on which the defendant’s liability or non-liability must necessarily turn. It is essential under such circumstances that the instructions to the jury giving them the law upon such Questions should be accurate. The one under consideration announces a wrong principle, and we regard it as necessarily misleading, and as the most serious of the errors made in the trial of the case. ■ The judgment will he reversed and the cause remanded. Ii&oersed cmd remanded.