Brunswick-Balke-Collender Co. v. Nix

Mr. Justice Freeman delivered the opinion of the court. It is contended in behalf of appellant, first, that the courf entirely lost jurisdiction of the cause when it had been called for trial, dismissed for want of prosecution and the Superior Court had refused to vacate the order of dismissal. After such dismissal and upon the same day the motion to reinstate was made before another judge of the same court. The motion was continued to the next term and some months afterward, several terms having intervened, the order of dismissal was vacated. We are of opinion, however, that defendant having subsequently submitted to the-jurisdiction of the court, having entered without reservation into a stipulation with appellee’s attorneys, in accordance with which the case was passed to be taken up on five days’ notice, having subsequently gone to trial examined and cross-examined witnesses, introduced testimony, argued the cause before the-jury, requested instruction from the court, submitted a motion for a new trial and taken what steps were deemed necessary in defending upon the merits, it must be held that whatever right of objection it may have had to the court’s jurisdiction has been waived. Prall v. Hunt, 41 Ill. App. 140; Herrington v. McCullom, 73 Ill. 476-479. It is urged that the plaintiff assumed the risk of injury in the operation of the machine, that such risk' was entirely open and obvious, that he was familiar' with the plug and all the conditions and knew the plug” was liable to work loose because it had done so three- or four times while he was using it. It is further contended that defendant was not guilty of negligence- and that there were errors in the admission of testimony. In the view we' are compelled to take of the admission of-certain testimony material to the issues, we-need not consider at length other questions presented. The negligence charged in the original declaration is that the bit was negligently attached and fastened to the revolving shaft. Subsequently six additional counts were filed, in which the negligence averred is, first, that plaintiff was furnished with unsuitable, improper and unsafe tools; second, that he was a minor and was not properly cautioned, warned and instructed as to hidden and latent defects and dangers in the machine; third, that he was negligently ordered to work with a bit or appliance out of repair and unsafely and insecurely fastened; fourth, that the bit, tool or appliance was carelessly, negligently and improperly constructed; fifth, that steam power was negligently applied with unnecessary and excessive force, causing the bit to. be detached and thrown against plaintiff; and sixth, the defendant so carelessly ran and operated the machine that by such negligence the bit, tool or appliance was detached and thrown against the plaintiff, causing the injuries complained of. In his testimony the plaintiff stated that the plug* he was' using to which the boring bit by which he was injured was attached had a shaft which was only half an inch in length from its “shoulder” and that it was inserted in the spindle or shaft only half an inch. It is evident this testimony had an important bearing on the question of defendant's alleged negligence in the use of the plug in question. Appellee testifies that he obtained the plug himself from a box, took it to the foreman, telling’ the latter he had to do some boring, that the foreman told appellee to get a certain employe who would put the plug in for him, that this was done, that the plug “went into the shaft about half an inch,” and that on each occasion when he was boring he used the same plug. There is evidence tending to show that plugs were in common use for the same purpose and in the same way as the one in question. The plug was “hammered into ’ ’ the place in which it was inserted in the spindle or shaft. These plugs were made by one of the employes of the defendant. The hole in which the plug was inserted is said by one of appellee's witnesses to have been about 2y2 inches in depth, and this witness who says he thinks he made the plug in question states that “it was about iy2 or 1% inches long,” that “the part of the plug that projected into the shaft was about half an inch or five-eighths inches long, something like that.” He states on cross-examination that “we used to make those plugs about 2% inches long. I made them so they would fit in this hole. ’ ’ The man who set the plug in question for appellee and testified in his behalf says the plug was “about 2y2 inches long,” and that it projected into the lathe “about an inch and a quarter or an inch and a half.” The same witness states that he gave plaintiff instructions pertaining to the use of the plug. There was therefore manifest discrepancy in the evidence introduced in behalf of plaintiff as to the depth to which the plug in question was inserted in the spindle. In order apparently to corroborate plaintiff in his statement that it was inserted in the hole only half an inch, plaintiff’s brother and father were called as witnesses. The former states that he saw a “wooden plug containing a bit” which was brought to the plaintiff’s home after the accident by someone unknown to him, and that “the part which entered the shaft was a half inch.” This testimony was admitted over defendant’s objection. A motion to strike it out was denied and exceptions were preserved. The father of the plaintiff was then put on the stand and was permitted in like manner, over objection, to describe the plug which he states he also saw at his home, and which he says extended into the shaft half an inch. The admission of this testimony was clearly erroneous and the error was, we think, material. The plug which these witnesses described was in no way identified and there was no evidence even tending to show that it ever was used in the machine in question, much less that it was the plug containing the bit by which the plaintiff was injured. There was evidence in behalf of defendant tending to contradict plaintiff’s evidence as to the plug and to show that these plugs were inserted in the shaft from about an inch and a half or two inches to two and a half inches, instead of only half an inch as plaintiff now states, though he apparently testified differently on a former occasion. The jury might readily suppose when the court permitted the introduction of the testimony of the two witnesses referred to that it was on the presumption they were testifying from personal examination of the identical plug which caused the accident, when in fact there is no warrant for any such presumption in the record; not even in plaintiff’s testimony that the last time he saw the plug and bit which hit him was* at his home when it was brought there by a man whom he don’t know. The evidence objected to was incompetent from any view and its admission was, we think, reversible error. The judgment of the Superior Court must be reversed and the cause remanded. Reversed and remanded.