Hess v. Rosenthal

Mr. Justice Gary delivered the opinioh of the Court. The appellants conducted a slaughter house, and employed Alter Uchineck as a common laborer, and his first employment was in salting hides. On the morning of his death he was put at work, standing upon the top of a box, some four feet high, four feet and a half wide, and five feet and ten inches long, raking cooked offal upon the top of the box, from the opening in a tank standing by the side of, and the bottom on a level with, the top of the box. By the end of the box where he stood was another like box and tank, but, as the declaration and the testimony on the part of the appellee are, with no cover on that box. This box had in it a quantity of hot fat. Uchineck was heard crying out, and men ran to him and took him out of the hot fat in the box, but he was so badly burned that he died in two days. He was thirty-eight years old and left a widow and children. The appellee is his administrator, and this suit is for damages for his death. The place was well lighted, and there is not a hint in the evidence as to how or why he got into the box with the hot-fat in it. Though but a common laborer he was a man of mature years, and all the surroundings were obvious. Did he slip into the box because the cover of the one he worked on was slippery, or did he absent-mindedly step in ? Ko one knows. A movable cover was provided for the box which had the hot fat in it, and the testimony on the part of the appellee is that it was lying outside of the box while Uchineck was still in the box, and on the part of the appellants that about ten minués before the accident the cover was on the box, and that one end of it was in the box while Uchineck was still in. If upon these facts the verdict of the jury can be justified ' upon any correct theory of the law applicable to them, the judgment should be affirmed. McCormick Har. Mach. v. Burandt, 33 Ill. App. 165, affirmed 136 Ill. 170. Mo instructions were asked by the appellee, and none of those asked by the appellants refused, except a couple which in effect told the jury that the appellants were not responsible for temporary displacement of the cover of the box, of which they had no notice. Mow the event has proved that a mechanical engineer planning such an apparatus might have foreseen that it was exceedingly dangerous to put a man who had no previous experience—and probably would ■ have been if his experience had been long-timed—at work in the manner and with the surroundings shown by this record. It can not be presumed that Uchineck willfully went to his death. He stepped or slipped to it by accident. C. & E. I. R. R. v. Hines, 152 Ill. 161. If there were faults in the original construction and arrangement of the parts of the apparatus, the appellants were bound by law to know it. Ibid., and same case, 33 Ill. App. 271. Consider that here a man is put to rake the contents out of a cylindrical tank, more than five feet in diameter and more than three feet high, through a door less than a foot wide, the cylinder standing upon one end, and that he had ■ a space two feet and eleven inches wide on each side of the center of that door to stand upon. We have here a model, certified by the judge as part of the bill of exceptions, from" which we take dimensions. Imagine how in reaching for those contents near to one side of the door within, he would necessarily go beyond the other side of the door without. If he was a diligent laborer his attention would be directed to his rake, not to his own feet, unless his own forethought, or a warning from others, had put him upon his guard against danger. > That it was wholly unnecessary to so arrange these vats and boxes that a laborer should be placed on such narrow footing, next to a box in which death lurked, covered by a lid at any moment liable to be misplaced, is apparent. Or accept a fair inference from the appellants’ version, and that is that the lid was so constructed that the step of the laborer upon it might precipitate him into the box, and the case is worse. Whether the declaration and the evidence fit each other can not be made a question on this record. Had a variance been pointed out below, it could have been removed by amendment. Burandt case, before cited. Nor can any question be made as to the sufficiency of the declaration. It is not assigned as error that it is not sufficient, and though it is assigned as error that the court denied a motion in arrest of judgment, yet all that the record shows as to what that motion was, is, that the defendants “ moved in arrest of judgment.” Why, they did not say. In their original brief they do not allude to the matter, which Avaives it. McDonald v. Logi, 143 Ill. 487. And further the declaration is governed by the rule of Libby v. Scherman, 146 Ill. 540, and not Joliet v. Shields, 134 Ill. 209. The judgment is affirmed.