Voigt v. Anglo-American Provision Co.

Mr. Presiding Justice Ball delivered the opinion of the court. In the written motion for a new trial none of the special findings are objected to as contrary to the evidence or as not supported by the evidence. The assignment that the verdict is against the weight of the evidence applies to the general verdict of not guilty. It does not include the special findings. It is too late to object to them for the first time in this court. They stand here as fully sustained by the evidence. Avery v. Moore, 133 Ill. 74; Penn. Coal Co. v. Kelly, 156 Ill. 15; Empire M. Co. v. Brady, 164 Ill. 61. Hence it must be held that the deceased came to his death by reason of his own negligence; that.he was killed as a result of voluntarily rushing into a place of known danger for the purpose of .saving his saw; that the tinners who caused the timber to fall, at'the time of the accident, were exercising ordinary care for -the safety of others; and that the deceased and said tinners were fellow-servants. But if these special findings had been specifically objected to in the motion for new trial, the legal effect of them would be unchanged. There is evidence in the record tending to support each of them, and the jury were justified by that evidence in finding as they did. The deceased and Graham were not ordered to stand in this angle while they waited the return of McAvoy. They chose this spot voluntarily, and thereby took upon themselves the risk of any known danger and. of any danger they might have known by the exercise of reasonable care. The two tinners were but forty feet above them, working on a surface only thirty inches wide, and thus necessarily in plain view of any one below who should look up. The jury could reasonably infer that in the five minutes deceased and Graham stood there they became aware of the presence of the tinners and knew or could easily have known what they were doing. With these questions thus settled, it is immaterial that the jury found that the deceased was not killed as the result of a pure accident without negligence upon the part of the defendant, and that his death was not occasioned by one of the ordinary risks or dangers of his employment, hieither of these findings is repugnant to the general verdict. The plaintiff complains of certain instructions which were given upon the request of the defendant. The ninth and eleventh instructions, if they are bad for the reason that they single out certain portions of the evidence, are not grounds for a reversal, because under the special finding that the deceased and the two tinners were fellow-servants and the general verdict of not guilty, the question of the care or the want of care of the deceased for his personal safety, for the purposes of this decision becomes immaterial. The thirteenth instruction, in regard to fellow-servants, includes all the tinners and all the carpenters; and therefore includes the deceased and the two tinners who threw down the timber. The fifteenth instruction,, relating to the testimony of employes “of either party,” when the plaintiff had called no employes, might have been drawn to include the employes 'of the defendant only, and yet be good. The stenographer called by defendant testified at length as to what the witness Graham swore to before the coroner, refreshing her memory by reference to a copy of the same, written out by her. This copy was then offered in evidence, and admitted without objection by plaintiff’s counsel, because, as he says, he did not hear the offer. When the jury were about to retire plaintiff’s counsel objected to that paper going to the jury, on the ground that it was not in evidence. The court stated that it was received in evidence at the time it was offered. Counsel then moved to strike it out of the record. The court overruled the motion and counsel excepted to the ruling. The motion for new trial does not assign the action of the court in refusing to strike this paper from the liles as a ground for a new trial. It is not covered by number four, relating to the admission of improper evidence. To its admission there was neither objection nor exception. By not complaining of this alleged error in the motion for a new trial, plaintiff waived it. Clause v. Bullock Printing P. Co., 20 Ill. App. 113, 116; Dallemand v. Saalfeldt, 73 Ill. App. 151, 153. Upon the whole evidence we are satisfied that justice has been done in this case, and we therefore affirm the judgment of the Superior Court.