American Malting Co. v. Lelivelt

Mr. Justice Sears delivered the opinion of the court. Counsel for appellant urge as grounds for a reversal: 1st. That there was no actionable negligence of appellant shown. 2d.? That appellee assumed the hazard of the danger which led to his injury. 3d. That the court erred in admitting evidence as to the use of counter-sunk set-screws in the Rockwell street malt house. 4th. That the court erred in permitting counsel for appellee to ask certain questions of veniremen upon voir dire. 5th. That the court erred in permitting counsel for appellee to make certain remarks in the presence and hearing of the jury. 6th. That there was error in the refusal of certain instructions tendered by appellant. The only grounds upon which negligence of the appellant could be predicated, are that the use of projecting set-screws is of itself a negligent act, or that there was negligence in failing to warn the appellee that projecting set-screws were upon the shafting in question. It can not be held that the use of projecting set-screws of itself imputes negligence. The evidence discloses by a great preponderance, if not conclusively, that projecting setscrews were in common use upon such machinery as that here in question, and there is considerable evidence to the effect that they were better than the counter-sunk screws for the purposes for which they were used. It is true that appellant had adopted the counter-sunk screws in its Rockwell street building. But it had not adopted them at the. Harvard street house. There is no obligation resting upon the employer to adopt every new device in machinery which may be invented. Hor is it of itself negligence to use machinery which is reasonably safe, although' other machinery might be found which would be more safe, and in use of which the injury could not occur. Simmons v. C. & T.R. R. Co., 110 Ill. 340; Stafford v. C., B. & Q. R. R. Co., 114 Ill. 244; Penn. Co. v. Backes, 133 Ill. 255. It is assigned as error that the court admitted, over objection, evidence as to the use of counter-sunk set-screws in the Rockwell street building. We are of opinion that the error is well assigned. The learned counsel for appellee urge that this evidence was competent because appellant owned both of the buildings. We can not view this fact as changing the rule. The question was whether there was negligence in using the projecting screw in the Harvard street house—not as to possibility of using the countersunk screw, nor the comparative merits or safety of the two kinds. C., R. I. & P. R. R. Co. v. Lonergan, 118 Ill. 41. In that case the Supreme Court said: “ The fact that a few of the railroads of the country have adopted this new device, or that the defendant has used it on a part of its road, is not enough to establish its utility and establish negligence in every other road that adheres to the old system.” It is a question of fact for the jury to determine, whether the course adopted in any given case was an exercise of ordinary care. If it can be said that the jury have here found that the use of projecting set-screws was of itself negligence, then the verdict was manifestly against the weight of the evidence. For the evidence shows that projecting set-screws were the commonly accepted device for holding the collar to the shaft. Neither do we think that negligence can be imputed to appellant by reason of the alleged failure to warn appellee of danger. Appellant’s foreman did warn appellee in general terms when setting him to work, and he referred him to the engineer for specific direction, and the engineer testified that he in turn warned him. But these warnings were of a general nature, i. e.. to be careful, and it is not shown that any one notified appellee specifically that the shafts were equipped with projecting set-screws. We are of opinion, however, that a failure in this did not constitute actionable negligence, and that upon the evidence a verdict could not be sustained which was based upon this failure of notice as the only ground of negligence. If the projecting set-screws were an unusual thing, and therefore constituted an unusual peril in the business, or if appellee had been a person of tender years, or otherwise incompetent to appreciate ordinary hazards of the business, the case might be different. But here the appellee was a man of mature years. He had been employed about like machinery for some time. He was perfectly aware that some shafts were equipped with projecting screws. He testified: “ I did not know there was a set-screw on the pulley at that time. Some pulleys are one way and some another. I made no inquiry of anybody as to how these collars were fastened.” It was apparent to any one of mature years and ordinary capacity, that the revolving shaft was dangerous, whether it was equipped with projecting set-screws or not. The evidence does not clearly establish, and it is a matter of inference only, that it was the set-screw which caught the clothing of appellee and caused his in jury. Close approach to the shaft while it was revolving was perilous and it was not incumbent upon appellant to notify or warn appellee of this self-evident fact. Anderbreg v. C. & N. W. Ry., 98 Ill. App. 207, and cases therein cited. Cases cited by the learned counsel for appellee which hold that a defect which increases the peril of the employment ought to be called to the attention of the employe if known, or if such as ought to be known, to the employer, are not in point, for here there was no defect, but an appliance which was in common use and of the ordinary kind. That the appellee, familiar with the use of projecting set-screws, assumed the hazard of such use of them as was in vogue in the business of appellant when he entered into his employment there, is, we think, apparent. The doctrine that an employe who has knowledge of a defect and yet continues in his work does not necessarily assume all the hazards of such defect if he be ignorant of the dangers therefrom arising, does not here apply. There was no defect. The danger in a swiftly revolving shaft is obvious. Whether the engineer directed appellee to use a crow-bar in his work, or not, it is uncontroverted that appellee was not directed to do the work with a screw-driver. He did choose to do it in that manner, and he knew the hazard. Karr Co. v. Kroening, 167 Ill. 660. It is true that the question of assumption of risks by an employe is usually a question of fact to be determined by a jury. But the verdict of a jury can not be permitted to support a judgment when that verdict is against the manifest weight of the evidence. The court did not err in permitting questions to veniremen upon their mvr dire. Iroquois Co. v. McCrae, 91 Ill. App. 337. Counsel for appellee stated, in effect, to the jury, in opening statement, that appellee could not call as a witness a physician who had attended him because the physician demanded $100 for testifying. This remark was improper. The process of the court could have secured the attendance and testimony of the witness. The remark was calculated to prejudice the jury, and it was error to overrule objection to it. Complaint is made of the refusal of the trial court to give the eighth, twenty-third and forty-first instructions tendered by appellant. We are of opinion that the learned trial court did not err therein. The eighth and forty-first instructions were bad, and the twenty-third, so far as it was proper and applicable to the evidence, was sufficiently covered by the thirty-sixth instruction given at instance of appellant. The eighth instruction assumed that failure on the part of appellee to exercise care deprived him of a right of recovery. The forty-first instruction imposed a duty of inspection upon appellee which the law does not require. Moreover, it was wholly inapplicable to the evidence, as no question as to defects or inspection therefor arises here. The evidence as to the light at the place of the injury was admissible as part of the res, but no right of recovery could be based upon such evidence under the pleadings. Because the verdict is against the manifest weight of the evidence, the judgment is reversed and the cause is remanded.